[been obtained on original suits instituted by them; and he referred Chap. 3. to a particular case of the ship Adventure, in the year 1763, and decreed that payment should be made according to the application (e). It is observable that there was not in this case any person representing the owner to object to the application. It appears by the report that the proceeds had been previously attached on the part of a creditor, and that the attachment had been removed before the decree, but no particulars relating to it are mentioned.] With respect to foreign (f) ships, it is now, by the 6th section of Necessaries 3 & 4 Vict. c. 65, enacted, that the High Court of Admiralty shall supplied to have jurisdiction to decide all claims and demands whatsoever for foreign ships. necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county, or upon the high seas, at the time when the necessaries were furnished, in respect of which such claim is made. The Court of Admiralty, the owners not opposing, has given effect to this section, directing payment out of proceeds in the registry, of the full amount of a claim for necessary moneys advanced to a foreign ship, partly "within the body of a county," and partly in a Scotch port out of its jurisdiction-with a protest however, that but for the shipowner's not appearing to protect his interest-there would have been considerable difficulty in making the order (g). In determining what are necessaries within the statute, that word will be liberally construed. It is not limited to things absolutely and unconditionally requisite for a ship in order to her putting to sea (h). Butchers' meat (i), anchors and cables (k), sails and copper sheathing (1), coals supplied at intervals to a foreign steamer for several voyages (m), have been considered necessaries, and the person supplying them has been thought entitled to sue in rem after the dishonour of a bill given to him in payment for them (n). Money paid by the acceptors of a bill drawn by the master of a foreign ship abroad, to procure necessaries, has been held recoverable against the ship (0). (e) [The John Jackson, 3 Rob. A. R. 288.] See Duncan v. M'Calmont, 3 Beav. 409; Castelli v. Cook, 7 Hare, 92. It seems that such a decree would not now be made. See the Neptune, 3 Knapp. 94. (f) A vessel built and registered at New Brunswick, and owned by a firm in Nova Scotia, has been held not to be a foreign sea-going vessel within this Act. The Ocean Queen, 1 W. Rob. 457. A colonial is not a foreign ship; the Wataja, Swab. 165. To give the court jurisdiction, the articles must have been furnished to the foreign ship within the body of a county, or upon the high seas. The Ocean, 2 W. Rob. 368; the India, 32 L. J. Ad. 85. (g) The Afina Van Linge, Swab. 514. As to this section not giving a maritime lien see the West Friesland, Swab. 455; the Ella A. Clarke, 32 L. J. Ad. 211; (h) The Perla, Swab. 353; the Comtesse (i) The Gosfabrick, Swab. 344. (k) The Alexander, 1 W. R. 361; the Sophie, ibid. 369. (1) The Perla, Swab. 353. (m) The West Friesland, 454. (o) The Onni, 1 Lush. 154, where money Part III. Necessaries supplied to ship elsewhere than in port to which she belongs. County court jurisdiction. Nature of contract by bottomry. The above-mentioned provisions of the 3 & 4 Vict. c. 65, are limited to foreign ships, but by the 24 & 25 Vict. c. 10, s. 4, the Court of Admiralty has jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under its arrest; and by sect. 5 of that Act, such court has jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it be shown to the satisfaction of the court, that at the time of the institution of the cause any owner or part-owner of the ship is domiciled in England or Wales (a). D. J. furnished necessaries to the A., which was subsequently sold to persons who had notice of D. J.'s claim: Held, that D. J. could not after the sale arrest the ship in an action for necessaries (b). As to a county court's Admiralty jurisdiction for necessaries, see 31 & 32 Vict. c. 71, s. 3. 5. In Foreign Ports the Master may hypothecate the Ship, but not generally at the Residence of his Owners. Of Contracts by Bottomry. [We have seen by several of the preceding cases that the master may, in foreign parts, hypothecate the ship; and I propose, in the next place, to consider the nature of those instruments of contract by which a ship itself is expressly made security, and pledged by the master for the repayment of a debt contracted with relation to it. It should be observed, that wherever the master may pledge the ship, he may pledge the freight also (c). These contracts are usually called contracts by bottomry, the bottom or keel of the ship being figuratively used to express the whole body thereof; sometimes also, but inaccurately, money lent in this manner is said to run at respondentia; for that word properly applies to the loan of money upon merchandise laden on board a ship, the repayment whereof is made to depend upon the safe arrival of the merchandise at the destined port. In like manner, the repayment of money lent on bottomry does in general depend upon the prosperous conclusion of the voyage; and as the lender sustains the hazard of] The Comtesse de Fregeville, 1 Lush. 329, (a) By sect. 5 it is provided, that if in (b) The Aneroid, 47 L. J. Ad. 15. (c) [The Gratitudine, Mazzola, 3 Rob. A. R. 240, and the Jacob, 4 Rob. A. R. 245. See as to the extent of an hypothecation of Held [the voyage, he receives, upon its happy termination, a greater price Chap. 3. or premium for his money than in ordinary cases. The premium paid on these occasions depends wholly on the contract of the parties, and consequently varies according to the nature of the adventure; and as the master of the ship may, under certain circumstances, pledge the ship by a bottomry contract, so also may the owners (d) or part-owners, in any case, to the extent of their respective interests; and this they not unfrequently do, in order to raise money for the outfit, when prudence dictates the propriety of such a measure, or the want of personal credit compels them to have recourse to it. The origin of these contracts is certainly very remote, and cannot now be accurately ascertained. It is said by a very learned writer (e), that they took their rise from the practice of allowing the master to hypothecate the ship in a foreign country, in order to raise money to refit. But this opinion may well be doubted; for, although the practice of lending money upon maritime risks at a high premium was well known to the Romans before the time of Justinian, yet in those titles of the Digest and the Code (f) which expressly treat of this subject, no mention is made of contracts of this nature entered into by the master of a ship in that character, according to the practice which has since universally prevailed. And except for the purpose of securing the payment of maritime interest, actual hypothecation was not necessary to give the creditor a claim upon the ship, as I have already shown. This point, however, is rather a matter of speculative curiosity than of useful research, and therefore I shall pursue it no further. The consideration of these contracts, when made by the owners or part-owners themselves, does not properly belong to this place; their legality, and the risks which the lender is to incur, according to general rules, are very ably treated by Mr. Park and Mr. Serjeant Marshall, in their chapters on Bottomry and Respondentia. I shall only mention such circumstances relating to them as are connected with the subject of hypothecation by the master; premising, however, that a total loss, within the meaning of a bottomry bond, cannot happen if the ship exists in specie, although it may be so much injured in the voyage as not to be worth repairing and bringing to the ultimate place of destination, so as to constitute a total loss within the meaning of a policy of insurance on the ship (g). The name of bottomry has been sometimes incorrectly applied to a contract, by the terms of which the ship itself is not pledged as a] (d) Pothier, vol. 3, p. 97; Emerigon, 375; Valin, liv. 3, tit. 5, art. 8; Bynkershoek, c. 515; Duke of Bedford, 2 Hagg. Adam. Rep. 294. As to the consent to a bottomry bond by a managing part-owner see the Royal Arch, Swab. 282. See remarks, post p. 106, as to owners making contracts of this kind in this country before the beginning of a voyage. (e) 2 Black. Com. p. 457, c. 30, s. 3. (f) [De Nautico Fænore: Dig. 22, 2; and Codex, 4, 33. See on this subject, Park, ch. 21; Guidon, ch. 18; Emerigon, tom. 2, p. 380; and stat. 6 Geo. 1, c. 18, 8. 12.] (g) [Thompson v. Royal Exchange Assurance Company, 1 M. & S. 31;] the Great Pacific, 38 L. J. Ad. 45; Broomfield v. Southern Insurance Company, L. R. 5, Ex. 192. Part III. [security, but the repayment of money, with a high premium for the risk, is made to depend upon the success of a voyage (a). This is rather a loan upon a particular adventure, to be made by a particular ship, than a loan upon the ship; and of course the lender has only the personal security of the borrower for the due performance of the contract.] With regard, however, to contracts of this sort, made by the owners themselves in this country before the beginning of a voyage, by the terms of which the ship is pledged as a security, it should be observed, that if the contract relate to a British ship, and purport to be, either a present assignment of the ship, liable to be defeated on repayment of the money due at the end of the voyage, or a future assignment, to take effect only upon failure of such payment, it seems that a compliance with the provisions of the Register Acts mentioned in a preceding chapter, is essential to the validity of the contract (b). [Neither does there seem any mode by which a person, who advances money at respondentia upon goods laden and to be laden on board a ship on an outward and homeward voyage, can resort for the payment of his debt to the specific goods that may be brought back (c). In a case of money lent to the master of an East India ship, who executed a bond in the form (d) commonly used on such occasions, and having taken out goods from this country and sold them in India, and brought back others purchased there with the proceeds of the first, became a bankrupt before he had repaid the loan, and while part of the goods and the money produced by the sale of another part remained in the hands of the East India Company, in whose warehouses they were deposited for sale, according to the rules of that trade; the Court of Chancery sent the following question for the determination of the Court of King's Bench-viz., " Whether the lender had by law, in respect to the money remaining due to him on the bond, any lien upon or interest in the money or goods remaining in the hands of the company, or either of them; and whether the same, or either of them, were by law liable to satisfy what so remained due ?" The Court of King's Bench determined the question in the negative (e). It may be observed, that the instrument used on this occasion does not contain a direct and formal pledge of the goods. A contract of hypothecation made by the master does not transfer the property of the ship, but only gives the creditor a privilege or claim upon it, to be carried into effect by legal process (f). It is contrary, therefore, to the nature of hypothecation, admitting the master's] (a) Three forms of bonds of this sort are printed in the Appendix to the Treatise of the Dominion of the Sea, and Body of Sea Law, p. 659, &c. (b) See the Aline, 1 W. Rob. 121; the Jenny, 2 W. Rob. 5; and Ladbroke v. Crickett, 2 Term Rep. 649; Johnson v. Shippen, 2 Ld. Raym. 983; per HOLT, C. J. (c) 2 Black. Com. 458. (d) [See Appendix.] (e) Busk v. Fearon, 4 East, 319. See Glover v. Black, 3 Burr. 1394. (f) [See Johnson v. Shippen, 2 Lord Raym. 984.] See the judgment of Lord STOWELL in the Tobago, 5 Rob. 222, and of the Court of C. P. in Stainbank v. Fenning, 11 C. B. 51. _ Stainbank v. Shepperd, 13 C. B. 418; 22 L. J. Ex. 341. [power to hypothecate the cargo (as will be presently mentioned) (g), Chap. 3. that he should engage to deliver the cargo in the first instance into the hands of the lender's appointee, at the place of destination, so as to enable him to sell it and receive the proceeds for the use of the lender, without giving the merchant an opportunity of taking it into his own hands upon discharging the incumbrance: and consequently the master has no power to enter into such an engagement (h)]. A contract of this sort is one of those matters which are technically called Choses in Action, and therefore, before the Judicature Acts, the duty created by it was not assignable, so as to enable an assignee to sue upon it in his own name, or to set off the amount against a demand upon himself, in a court of common law; although such an assignment might have been made available in a court of equity (i). In the Admiralty, even before the Judicature Acts, a bottomry bond was a negotiable interest, which might be transferred and put in issue by the person so acquiring it (k). place of owner's [It is obvious that a loan of money upon bottomry, while it relieves Borrowing the owners from many of the perils of a maritime adventure, deprives money on them also of a great part of the profits of a successful voyage; and bottomry at therefore, in the place of the owner's residence, where they may exercise their own judgment upon the propriety of borrowing money in residence. this manner, the master of the ship is by the maritime law of all states precluded (7) from doing it, so as to bind the interest of his owners, without their consent (m). The meaning of the words "place of residence" (la demeure des propriétaires) has given occasion to some questions in France. With us, I apprehend, the whole of England is considered for this purpose as the residence of an Englishman; at least, before the commencement of a voyage. Ireland has been held to be a foreign country, in the case of an English ship hypothecated by the master there in the course of a voyage (n). In a case (0), wherein it appeared that a Spanish ship, on a voyage from Alicant to London, put into Corunna to repair, and that the master, being unknown and without credit, gave a bottomry bond there for money advanced to defray the expenses] (g) Post, p. 120. (h) Johnson v. Greaves, 2 Taunt. 344. (i) Marshall v. Wilson, at Guildhall, Dec. 18, 1811, before Lord ELLENBOROUGH, Chief Justice. (k) The Rebecca, 5 Rob. Adm. Rep. 102. (This is so in general, see the Trident, 1 W. Rob. Ad. Rep. 29. (m) [Hanseatic Ordinance, art. 58; Hanseatic Ordinance of 1614, tit. 6, art. 1; French Ordinance, liv. 2, tit. 1, Du Capitaine, art. 17, and liv. 3, tit. 5, Des Contrats à la grosse, art. 8; Emerigon, tom. 2, p. 424; Molloy, book 2, ch. 11, sect. 14; Weskett, tit. Bottomry, sects. 20, 23; Lister v. Baxter, 2 Stra. 695.] (n) [Menetone v. Gibbons, 3 Term Rep. K. B. 267, query since the Union. See the judgment in the Rhadamanthe, 1 Dods. (o) La Ysabel, 1 Dods. 273. The Baboon, |