respondentia, as aforesaid, shall recover more on any assurance than the value of his interest in the ship, or in the merchandises or effects laden on board of such ship, exclusive of the money so borrowed; and in case it shall appear that the value of his share in the ship, or in the merchandises or effects laden on board, doth not amount to the full sum or sums he hath borrowed as aforesaid, such borrower shall be responsible to the lender for so much of the money borrowed as he hath not laid out on the ship or merchandises laden thereon, with lawful interest for the same, together with the assurance and all other charges thereon, in the proportion the money not laid out shall bear to the whole money lent, notwithstanding the ship and merchandises be totally lost" (s). This statute was introduced for the protection of the trade of the East India Company; and its rules must be complied with in the case of bottomry by the master.

By a former statute, all contracts or agreements made by any of His Majesty's subjects, or any persons in trust for them, upon the loan of any money by way of bottomry on any ship in the service of foreigners bound or designed to trade within the limits of the East India Company's charter, or of supplying such ships with any provisions, stores, or necessaries, are made wholly void (t). This statute also applies to contracts of bottomry by the master.

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 the lender has not the same convenient and advantageous remedy by suit in the Admiralty against the ship (u), as he has in the case of hypothecation for necessaries by the master in a foreign port; and 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 with regard to the transfer of property in ships, is essential to the validity of the contract.

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 (a). In a case of money lent to the master of an East India ship, who executed a bond in the form (y) 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

(8) 19 Geo. 2, c. 37, s. 5.

(t) 7 Geo. 1, stat. 1, c. 21, s. 2.

(u) Dict. Accord. by Holt, C. J., in Johnson v. Shippen, 2 Ld. Raym. 983; and by Lawrence, J., in the case of Busk v. Fearon, B. R. Mich. T., 44 Geo. 3. This case is shortly reported in 4 East, 319, but this dictum of the learned judge

is not noticed. It was a case of loan in
England at respondentia, and the parties
were British subjects. See the Aline,
1 W. Rob. 121; the Jenny, 2 W. Rob. 5;
and Ladbroke v. Crickett, 2 Term Rep.
649.

(x) 2 Black. Com. 458.
(y) See Appendix.

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 (2). 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 (a). It is contrary, therefore, to the nature of hypothecation, admitting the master's power to hypothecate the cargo (as will be presently mentioned) (b), 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 (c).

A contract of this sort is one of those matters which are technically called Choses in Action, and therefore the duty that may be created by it is not assignable by the common law of England, 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 our courts of common law; although such an assignment may be made available in a court of equity: and it is questionable whether a demand arising out of such a contract can be made the subject of a set-off under the statutes in the hands of the original party (d). In the Admiralty, a bottomry bond is a negotiable interest, which may be transferred and put in issue by the person so acquiring it (e).

It is obvious that a loan of money upon bottomry, while it relieves the owners from many of the perils of a maritime adventure, deprives them also of a great part of the profits of a successful voyage; and therefore, in the place of the owner's residence, where they may exercise their own judgment upon the propriety of borrowing money in this manner, the master of the ship is by the maritime law of all states

(z) Busk V. Fearon and others, 4 East, 319. See Glover v. Black, 3 Burr. 1394.

(a) 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. (N. S.) Ex. 341.

(b) Post, p. 139.

(c) Johnson v. Greaves, 2 Taunt. 344. (d) Marshall v. Wilson, at Guildhall, Dec. 18, 1811, before Lord Ellenborough, Chief Justice.

(e) The Rebecca, 5 Rob. Adm. Rep.

102.

precluded from doing it, so as to bind the interest of his owners, without their consent (ƒ).

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 (g). But doubt may be entertained, whether the incorporation of Ireland with this country by the Act of Union, may not have the effect of altering the rule (h). The Court of Admiralty, not long ago, granted its warrant to arrest a ship on a bottomry bond executed at Jersey, for the repairs and outfit by a person who was both master and owner (i). In the bond this person was described as of London, and the ship as of Jersey. The authority of the court to hold cognizance of the cause does not appear to have been disputed by the owner; and in the result the ship was sold under a decree of the court. In a later case (k), 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-Lord Stowell decided that the bond was valid, and in the course of his judgment observed, "It was not in the same province of that distracted kingdom that the transaction took place, nor could the master, under the circumstances in which he was placed, have applied to his owners for assistance;" and added, "It is true that it is usually required, as a condition necessary to the validity of bonds of this kind, that they should be executed in a foreign port, but the law does not look to the mere locality of the transaction. The validity or invalidity of the bond does not rest on that circumstance only, but upon the extreme difficulty of communication between the master and his owners. The difficulty of communication was, in fact, greater than if the ship had been in a foreign port. If the policy of the law, in allowing this authority to the master to hypothecate his ship and cargo, is founded on the extreme difficulty of communication with his owners, there is no reason for saying that there was not abundance of difficulty to authorize him to do so in the present instance."

Where a bottomry bond was given at Plymouth by the master of a British ship, the owner of which, during its voyage to the East

(ƒ) 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.

K. B. 267, the hypothecation was made in
Ireland.

(h) See the judgment in the Rhadamanthe, 1 Dods. 201.

(i) The Barbara, 4 Rob. 1.

(k) La Ysabel, 1 Dods. 273. The Baboon, 4 Rob. 1. The Oriental, 7 Moore, P. C. 459. The Bonaparte, 8 Moore, P. C. 459. See (g) In Menetone v. Gibbons, 3 Term Rep. Glascott v. Lang, 2 Phillips, 321; cargo ex Sultan, Swab. 504.

K

Indies, had died insolvent, his personal representative not having administered, and declining to make advances, the learned Judge of the Court of Admiralty entertained no doubt of his jurisdiction (4). More recently he has refused to support a bottomry bond given by the master, with the consent of the owner, upon a British ship lying in a British port for a new voyage, on the ground that it would create without necessity a secret lien on the ship, to the prejudice of subsequent bona fide mortgages (m). But a bond given by a British subject on the occasion of his purchasing a British ship abroad, and raising money for her outfit to return home and for a new voyage, has been upheld (n).

With regard to a foreign country, the rule appears to be, that if the master of a vessel has occasion for money to repair or victual his ship, or for any other purpose necessary to enable him to complete the enterprise in which she is engaged, whether the occasion arises from any extraordinary peril or misfortune (o), or from the ordinary course of the adventure, he may, if he cannot otherwise obtain it, borrow money on bottomry at maritime interest, and pledge the ship, and the freight to be earned in the voyage, for repayment at the termination of the voyage. When this is done, the owners are never personally responsible (p). The remedy of the lender is against the master of the ship.

But if the person who thus advances money does not choose to take upon himself the risk of the ship's return, and will be content not to demand maritime interest, there seems to be no reason why the master should not pledge both the ship itself and the personal credit of the owner. And in a case which came before Sir John Strange, Master of the Rolls, wherein a man, who had advanced money to refit a ship in distress at Jamaica, and had taken from the master both a deed of hypothecation of the ship, and bills of exchange upon the principal owner in England, for the amount of the sum advanced, claimed payment of the owners personally, the ship having been captured on her voyage home, it was decreed that he should recover the money; and it is said also, that the ship was thought to be well hypothecated (q). But it has been recently decided that the master has no authority to hypothecate the ship to secure advances for repairs, unless repayment be made to depend on the arrival of the

ship (r). A bottomry bond may be given to a person who, without actually advancing money, has pledged his credit for the expenses of the ship (8).

6. Requisites to Validity of Bottomry Securities.

It is necessary, however, to the validity of a bond securing maritime interest, that the money should be originally advanced upon the credit of the ship. If it be originally advanced upon the credit of the owner, and such a bond be afterwards given, in consequence of doubt arising as to his responsibility, even before the ship leaves the place of advance, the bond will be invalid (t).

It is no objection to the validity of such a bond that it happens to be given to the consignees of the cargo by a master appointed by themselves; the necessity of such appointment and of borrowing by hypothecation, and the fairness of the transaction, being established (u).

It has been doubted even whether a master substituted by under