Alterations of Bonds. Bonds delivered as an Escrow.-Bottomry. General Principles. a bond held by an alien enemy during a war. | delivered absolutely; and it is not to be doubted But it is not so clear that, upon a bond dated in the obligees would be more secure against fraud, 1773, and on which suit was not brought until if the evidence that the writing was delivered 1802, the same length of time after the removal as an escrow appeared upon the face, than by of the disability is necessary to raise the pre- admitting parol testimony of that fact. But the sumption of payment, and would be required, if law is settled otherwise, and it is not to be disthe bond had borne date at the time of such re- turbed by the supreme court. Ibid. moval. Ibid. 139. A lapse of twenty years, without the payment of interest, raises a presumption of payment; if a shorter period is relied on, the presumption should be corroborated by circumstances. Goldhawk, Ex'r. &c., v. Duane, 2 Wash. C. C. R. 323. 6. Alterations of Bonds. 140. If a bond be executed by O., as surety for S., to obtain an appeal from the judgment of a justice of the peace, and the bond is rejected by the justice, and afterwards, without the knowledge of O., the name of W. be interlined as an obligor, who executes the bond, and the justice then accepts it, it is void as to O. O'Neale v. Long, 4 Cranch, 60; 2 Cond. Rep. 24. 141. The name of an obligor may be erased from a bond, and a new obligor be inserted, by consent of all the parties, without making the bond void; such consent may be proved by parol evidence, and it is immaterial whether the consent be given before or after the execution of the bond. Speake et al. v. The U. S., 9 Cranch, 28; 3 Cond. Rep. 244. 142. A bond is not avoided by the seals being torn off, fraudulently or innocently, by the obligor, but may be declared on, as a subsisting bond. Cutts v. U. S., 1 Gallis. C. C. R. 69. 143. If an obligee tear off the seal, or cancel| a bond in consequence of fraud and imposition practised by the obligor, he may declare on such mutilated bond as the deed of the party, and set forth the special facts in the profert. U. S. v. Spalding, 2 Mason's C. C. R. 478. 144. A court of law has concurrent jurisdiction with a court of equity, to sustain a suit to enforce a bond cancelled by the obligor in consequence of fraud practised by the obligee. Ibid. 145. An alteration in a bond, made by one of the clerks of the custom-house, after its execution, for the purpose rectifying it, but which did not affect its construction, was held to be the act of a stranger, and immaterial, and not to avoid the bond. The U. S. v. Hatch, 1 Paine's C. C. R. 336. 146. An interlineation had been made in a bond after its execution, without the knowledge of the surety, by which additional duties were to be performed by the principal; the surety could not be held responsible for those duties stated in the bond before the interlineation, and the bond was entirely void. Miller v. Stewart, 4 Wash. C. C. R. 26. 7. Bonds delivered as an Escrow. 147. A bond may be delivered as an escrow by the surety to the principal obligor. Pawling et al. v. The U. S., 4 Cranch, 219; 2 Cond. Rep. 92. 148. The bond, upon its face, purports to be 149. If one of the obligors, at the time of executing the bond, in the presence of some of the other obligors, says, we acknowledge this instrument, but others are to sign it," this is evidence from which the jury may infer a delivery as an escrow by all the obligors who were then present. Ibid. 1. The holder of a bottomry bond cannot claim in a court of prize. The Mary; Stafford, Master, 9 Cranch, 126; 3 Cond. Rep. 306. 2. An hypothecation of a ship by the master is invalid, unless it is shown by the creditor that the advances were necessary to effectuate the objects of the voyage, or the safety of the ship; and that the supplies thus necessary, could not be procured upon the owner's credit, or with his funds, at the place. The Aurora, 1 Wheat. 96; 3 Cond. Rep. 501. 3. A bottomry bond, given to pay off a former bottomry bond, must stand or fall with the first hypothecation; and the subsequent lenders can claim only upon the same ground with the former lenders, of whom they are virtually the assignees. Ibid. 4. The master of the ship is the confidential servant or agent of the owners, and they are bound to the performance of all lawful contracts made by him relative to the usual employment of the ship, and the repairs, and other necessaries furnished for her use. But the authority of the master is limited to objects connected with the voyage; and if he transcends his authority, his acts become, in legal contemplation, nullities. Ibid. 5. It is incumbent on a creditor, who claims under an hypothecation, to prove the actual existence of the necessity for those things which gave rise to his demand; and if from his own showing, or otherwise, it appears he had funds in his hands of the owners, which might have been applied to the demand, and that he has neglected or refused so to do, he must fail in his claim. If various demands are mixed up in a bond, some of which would sustain the hypothecation, and some not, it is his duty to exhibit them to the court, that they may be separately weighed and considered. Ibid. 6. A bona fide creditor, who advances his money to relieve a ship from an actual arrest, on account of debts which are a lien upon her, may General Principles. Ibid. stipulate for a bottomry interest, and the neces- was not a mere contract of wager and hazard. sity will justify the master, who has no other sufficient funds or credit, in giving it. But a mere threat to arrest the ship for a pre-existing debt, would not be a sufficient necessity to justify the master in executing an hypothecation. Ibid. 7. If the obligee of a bottomry bond suffers the ship to make several voyages, without asserting his lien, and executions are levied upon the ship by other creditors, the obligee loses his lien on the ship. Blaine v. Ship Charles Carter, 4 Cranch, 328; 2 Cond. Rep. 127. 14. On an appeal from the decree of the circuit court of Maryland, on a libel on a bottomry bond, originally filed in the district court, it appeared that commissioners appointed by the circuit eourt had reported that a certain sum, being a part of the amount of the bond, was absolutely necessary for the ship, as expenses and repairs in the common course of her employment. No exception was taken to this report by either party in the circuit court, and it was accordingly confirmed by that court. The 8. A bottomry bond made by the master, vests report is not open for revision in the supreme no absolute, indefeasible interest in the ship court, there being nothing on its face impeachupon which it is founded; but gives a claiming its correctness. The Virgin, 8 Peters, 538. upon her which may be enforced with all the expedition and efficiency of the admiralty process. Ibid. 9. In case of a bottomry bond executed by an owner, at his own place of residence, the same reason does not exist for giving an implied admiralty claim upon the bottomry; for it is in his own power to execute an express transfer or mortgage. Ibid. 10. Where proceedings were commenced in the admiralty, on bottomry bonds given by the master, and by the owner, on a ship, anterior to several voyages made by the ship, and executions had been levied on the ship for other debts due by the owner, before the warrant from the admiralty on the bottomry bonds was served, the court said: "Had the warrant of the admiralty been first served upon the ship, there might be some ground to contend that the supreme court ought not to divest that possession in favour of executions served at a subsequent day, at least to the prejudice of the bond given by the master. But this will not be allowed against executions levied before the service of the warrant. The owners of the ship had lost the possession, upon which alone the warrant of the admiralty could operate, after losing the preference. Ibid. 11. It is not necessary that a respondentia loan should be made before the departure of the ship on the voyage; nor that the money loaned should be employed in the outfit of the vessel, or invested in the goods on which the risk is run. Conard v. The Atlantic Ins. Co., 1 Peters, 436. 12. It matters not at what time the loan is made, nor upon what goods the risk is taken. If the risk of the voyage be substantially and really taken; if the transaction be not a device to cover usury, gaming, or fraud; if the advance be in good faith, for a maritime premium, it is no objection to it, that it was made after the voyage was commenced, nor that the money was appropriated to purposes wholly unconnected with the voyage. lbid. 437. 13. The lender on respondentia is not presumed to lend on the faith of any particular appropriation of the money; and if it were other wise, his security could not be avoided by any misapplication of the fund, where the risk was run, bona fide, upon other goods; and it 15. It is no objection to a bottomry bond, that it was taken for a larger amount than that which could be properly the subject of such a loan; for a bottomry bond may be good in part, and bad in part; and it will be upheld by courts of admiralty, as a lien to the extent to which it is valid: as such courts, in the exercise of their jurisdiction, are not governed by the strict rules of the common law, but act upon enlarged principles of equity. Ibid. 16. It is notorious, that in foreign countries, supplies and advances for repairs and necessary expenditures of the ship, constitute, by the general maritime law, a valid lien on the ship; a lien which might be enforced in rem in our courts of admiralty, even if the bottomry bond were, as it certainly is not, void in toto. Ibid. 17. An objection was taken to the bond, that the supplies and advances might have been obtained on the personal credit of the owners of the ship, without an hypothecation. Held, that the necessity of the supplies and advances being once made out, it is incumbent upon the owners, who assert that they could have been obtained upon their personal credit, to establish that fact by competent proofs, unless it is apparent from the circumstances of the case. Ibid. 18. It was objected that the supplies and repairs were, in the first instance, made on the personal credit of the master of the ship, and therefore could not be afterwards made a lien on the ship. Held, that the lender on the bottomry bond might well trust the credit of the master as auxiliary to his security; and the fact that the master ordered the supplies and repairs before the bottomry was given, can have no legal effect to defeat the security, if they were ordered by the master, upon the fait, and with the intention that a bottomry bond should be ultimately given to secure the payment of them. In cases of this sort, the bottomry bond is, in practice, ordinarily given after the whole supplies and repairs have been furnished; for the plain reason, that the advances required can rarely be ascertained with exactness until that period. Ibid. 19. It was objected, that the advances were for a voyage not authorized by the owners; that the original orders were for the master to get a freight for Baltimore or New York, and if he could not, then to proceed to New Orleans; General Principles. whereas the master broke up his voyage, and and part for repairs of the vessel to be made at without any freight returned to Baltimore. By Calcutta. The circuit court of Pennsylvania the court:-It may be admitted, that if a bot- held, that the payment of the hypothecation tomry lender, in fraud of the owners, and by given at Port Jackson, is not a valid consideraconnivance with the master for improper pur- tion for the bond executed at Calcutta, as there poses, advances his money on a new voyage, not was no proof of the necessity for executing it. authorized by the instructions of the owner, his Walden v. Chamberlain, 3 Wash. C. C. R. 290. bottomry bond may be set aside as invalid. But there is no pretence to say, that if the master does deviate from his instructions, without any participation or co-operation, or fraudulent intent of the bottomry lender, the latter is to lose his security for his advances, bona fide made for the relief of the ship's necessities. Ibid. 20. Graf, one of the owners, had the ship delivered up to him upon an appraisement, at the value of eighteen hundred dollars, and he gave a stipulation according to the course of admiralty proceedings, to refund that value, together with damages, interest and costs, to the court. He is not at liberty now to insist that the ship is of less than that value in his hands, or that he has discharged other liens, diminishing the value for which the owners were personally liable, in solido, in the first instance. Ibid. 21. To the extent of the appraised value of the ship delivered upon the stipulation, the owners are clearly liable; for she was pledged for the redemption of the debt, and they cannot take the fund, except cum onere. But beyond this, there is no personal obligation upon the owners. Ibid. 25. The obligee in a bottomry bond ought always to prove the necessity for the advances, and that they were made on the credit of the vessel, is never to be presumed. If the master has, or can command other funds, he has no authority to subject the property of the owner to the payment of a premium beyond legal interest. Ibid. 26. There was another conclusive objection to the validity of this bond, which was, that before the advance was made, and the bond given, the master had resigned his command of the vessel, and another master, appointed by the libellant, had succeeded to it. Ibid. 27. The master of an American vessel in an enemy's country, may hypothecate the vessel for money advanced to return to the United States as a cartel, though the original voyage was broken up by the capture, and the compalsory sale of the cargo. Crawford v. The William Penn, 3 Wash. Č. C. R. 484. 28. In a respondentia bond for ten thousand dollars, on goods on board of the brig S., from Boston to St. Petersburg and back, there was a clause that the brig was to have on board, on both passages, the amount lent in goods. There was also a memorandum executed at the same time, but not referred to in the bond, that the bills of lading should be endorsed to the lenders as collateral security. The brig was lost on the return voyage, having goods on board to the value of nine thousand dollars only. The lenders sued upon the bond and claimed payment of the ten thousand dollars, because the full amount of goods was not on board, and because the bills of lading were not endorsed to the lenders. It was held, that these acts were not conditions 22. In this case, the value of the ship, the only fund out of which payment can be made, fell far short of a full payment of the amount due upon the bottomry bond. The court said, This is the misfortune of the lender, and not the fault of the owners. They are not to be made personally responsible for the act of the master, because the fund has turned out to be inadequate; since, by our law, he had no authority by a bottomry bond to pledge the ship, and also the personal responsibility of the owners. The consequence is, that the loss, beyond the amount of the fund pledged, must be born by the libel-precedent, the omission of which was sufficient lant. Ibid. 23. No lien upon enemy's property by way of pledge, or hypothecation, or for advances made by the consignee to the consignor, or in virtue of a general balance of account due to the consignee as a factor, is sufficient to defeat the right of the captors in a prize court, unless in very particular cases, where the lien is imposed by a general law of the mercantile world, independent of any contract between the parties. The Frances; Irvin's Claim, 8 Cranch, 418; 3 Cond. Rep. 189. 24. A fibel was filed in the district court of Pennsylvania on an hypothecation bond, executed by the former master of the vessel at Calcutta, the Aurora being about to proceed to Philadelphia. The captain chartered the vessel to the libellant, for the voyage to Philadelphia, under another master, and at the same time executed the bond, part of the consideration of which, was to obtain funds for the payment of an hypothecation of the vessel at Port Jackson, (of the necessity of executing which there was no proof,) to justify a recovery in toto; but the lenders were entitled to recover the difference in amount between the sum lent and the sum on board at the time of the loss. Franklin Ins. Co. v. Lord, 4 Mason's C. C. R. 248. 29. If a wharfinger has made an express personal contract with the ship-owner, the court will not give him a priority claim over a bottomry interest which had previously attached to the ship. Ex parte Lewis, 2 Gallis. C. C. R. 483. 30. A bottomry bond can be entered into by the ship-master only under circumstances of great distress, and when he has no other means of repairing the ship. The Ship Mary, Bee's Adm. Decis. 120. 31. The captain of a vessel is not permitted to hypothecate the vessel for money taken up in a foreign port, if his owners have a representative or correspondent there, who will advance what is necessary; or if the same can be procured by other means. The Golden Rose, Bee's Adm. Decis. 131. General Principles. 32. A bottomry bond can be entered into by the master only under circumstances of great distress, and when he has no other means of repairing. Hypothecation cannot be made to a consignee. Judge Hopkinson, in the admiralty court of Pennsylvania, in 1785, in the case of Leibart et al. v. The Ship Emperor. 33. The plaintiffs insured twelve thousand dollars on the Anna Maria, from Cadiz to Antwerp, by a valued policy; and the vessel having put into Gibraltar in distress, the captain executed, a few days before the date of the policy, a bottomry bond for repairs. The circuit court of Pennsylvania held, that a deduction of the amount of the bond should be made from the real value of the vessel, as found by the jury. Watson v. The Ins. Co. of North America, 3 Wash. C. C. R. 1. 34. The owner as well as the master of a vessel may pledge her by bottomry in a foreign port. The Sloop Mary, 1 Paine's C. C. R. 671. 35. The master of a vessel, in a foreign port, acting in the character of agent, is limited in his power, and can only pledge the vessel in case of necessity: but the owner, having an absolute control over his property, may pledge her for money to purchase a cargo, and thereby create an admiralty lien. Ibid. 36. If the property of a shipper be taken and sold for the ship's necessities, and to enable her to perform the voyage, the party has a right of contribution over against the other shippers, and his remedy is not confined to the ship-owner. A bottomry bond may be good in part, and bad in part, and will be sustained by the court so far as it is good. Ship Packet, 3 Mason's C. C. R. 255. were made, exceeding half her value. A bottomry bond was given for the amount. She proceeded on her voyage, and safely arrived. Four days before her arrival, the owner abandoned, not having previous information. Subsequently, the vessel was sold under the bottomry bond. Held, that the loss was not total at the time of the abandonment, and that the plaintiff could not recover for a total loss. Held, also, that the underwriter was entitled to have the usual deduction on repairs of one-third, new for old, as the sale of the vessel was by default of the owner. Humphreys v. Union Ins. Co., 3 Mason's C. C. R. 429. 41. Marine interest is also requisite to a bottomry loan; but if not expressed in the bond, it will be presumed to have been included with the principal. The Sloop Mary, 1 Paine's C. C. R. 671. 42. The risk of the lender, and his right to repayment only on the safe arrival of the vessel, constitute the essential difference between a bottomry and a simple loan. Ibid. 43. The master may hypothecate vessel and freight, in a foreign port, for advances necessary for repairing and provisioning the vessel, if such advances cannot be procured on the credit of the owner. Murray v. . Lazarus, 1 Paine's C. C. R. 572. 44. To make an hypothecation bond, executed by the master of a vessel, valid, the necessity of raising the funds advanced upon it, by such means, must be shown. The Ship Lavinia v. Barclay, 1 Wash. C. C. R. 49. 45. If one of the owners of the vessel reside at the port where the bond is given, it is not good. Ibid. 37. In case of necessary repairs, the master 46. The consignee of a vessel is bound to admay sell part of the cargo, or hypothecate it.vance the freight for the supply of the necessities If he has specie on board, belonging to shippers, of the voyage, to be so applied by the master. not the owners of the vessel, he is not bound to Ibid. apply it to the ship's necessities, before borrow- 47. While the freight is in the hands of the ing on bottomry, at least if it is not equal to the consignee, he cannot advance money to the amount of repairs; but the law invests him with master on marine interest, unless he has been a large discretion on the subject. If he has suf-directed by the consignor to appropriate the ficient money of the owners of the vessel, he freight to another purpose. Ibid. cannot borrow on bottomry; so, it seems, if he has specie of his own on board. Ibid. 38. When freight is pledged in a bottomry bond, it means the freight of the whole voyage, and not the freight for that part of the voyage unperformed at the time of giving the bottomry bond. The Schooner Zephyr, 3 Mason's C. C. R. 341. 39. When a bottomry bond was given, payable within five days after the arrival of the vessel at Boston, and a bill of exchange was drawn for the amount loaned, at the same time, payable in London, and the agreement was, that if the bill was paid, the bottomry bond should be void, at the option of the borrower, and the borrower does not elect to pay the bill, the lender cannot, in a suit on the bottomry bond, recover the exchange between Boston and London, but must receive the amount of his bottomry bond. Ibid. 40. A vessel was insured from Messina to Boston. She met with disasters in the course of her voyage, put into Lisbon for repairs, and they 48. The master of a vessel, from the necessity of the case, may bind his money for repairs, unless it appear that some other person has authority to manage the concern, in the particular instance; and that this was known to the creditor. Phillips v. Ledley, 1 Wash. C. C. R. 226. 49. The mortgagee of a vessel, before possession delivered, is not responsible for repairs made by the mortgagor; nor is he entitled to the earnings of the vessel. Ibid. 50. An instrument, claimed to be an hypothecation of a vessel, is not such, if it was given to the consignee, when he had funds in his hands to secure the advances made by him for the vessel. Hurry v. The Ship John and Alice et al., 1 Wash. C. C. R. 293. 51. A consignee, under such circumstances, cannot enter into a maritime contract with the master of the vessel, so as to bind him to pay marine interest. Ibid. 52. The cargo and freight is subject to the payment of extraordinary demands for com General Principles. pleting the voyage; and the consignee takes these funds cum onere; and under an implied engagement to make the necessary advances. Ibid. 53. The master, being also owner of the vessel, may give a specific lien on her, for securing advances made for any purpose; but if this is not given by virtue of his authority as a master, it will not be marine hypothecation. Ibid. 54. The master cannot hypothecate for a preexisting debt, but only for advances for a purpose necessary to enable him to complete his voyage, made at the time the necessity existed. Ibid. 55. In the district court of Pennsylvania it was held, that to make an hypothecation by the master a valid contract, it is essential, 1. That it should be absolutely necessary for the safety of the ship, and to enable her to proceed on her voyage, and not for any other debt or demand, either pre-existent or co-existent, for other purposes or on other accounts, or even for similar supplies on other voyages. 2. It must be made in a strange port, and not in the port where the owners reside, and its reasonableness and necessity should be shown. 3. It must be where none of the owners are present, and where the master has no goods, or not a sufficiency, either belonging to his owners or himself; for he may pledge the goods and freight as well as the ship, or he may sell a part of the cargo to repair the ship. 4. It is essential that no other means of procuring funds, at the place required, should exist. Of course, if the owners have agents or consignees, who have either funds or property to furnish, or are bound to afford means on the personal credit of the owners, this power in the captain is excluded. 5. The sum loaned must be at risk, and there must not be a personal responsibility; that is, the money must be advanced on the faith of the ship, and at the sole risk of her loss or safety. Rucher et al. v. Conyngham, 2 Adm. Decis. 295. 56. In the same case it was decided, that an hypothecation bond must not be diverted from its original use to the purpose of securing engagements, not at first founded merely on the credit of the ship, but for advances made on the personal credit of the owner, either voluntarily by their consignee, agent, or friend, or at their request; nor can it be given as a double security, running along with, and in aid of a personal responsibility. Also, that in general, a consignee cannot take a bottomry boud from the master to secure his advances: but cases may exist where the consignee is not bound, more than any other lender, to advance for repairs, without taking the ship as security for a loan on maritime interest. Ibid. 57. A master may bind his owners and their property to fulfil his contracts for money taken up in foreign ports for the necessary purposes of the voyage. Such contracts must be fair, made in a foreign country, where there is no owner, and under such circumstances of necessity as show they were entered into with a view to the interest of the owner. The Active, 2 Wash. C. C. R. 226. 58. The master is bound to raise the money by means the least injurious to the owner. He should first endeavour to raise it by bills on his owner, which he is bound to accept and pay. If he cannot obtain it in this way, he may pledge the ship to repay advances, with maritime interest. If the owner of the ship be also owner or part owner of the cargo, he may sell a part of the cargo in preference to borrowing at an extraordinary interest; and in his choice of means, his judgment, fairly exercised, must govern him. If in none of these ways he can raise the money, he may go beyond the general scope of his authority as master, and may sell a part of the cargo, or hypothecate the whole. But the necessity must be such as to connect the act with the success of the voyage, and not for the exclusive interest of the ship-owner. Ibid. 59. If the owner of the cargo be on board, and the master cannot raise the money on the credit of his owner, the merchant consignee ought to advance his money or credit. But he is under no obligation to do so; and if he does advance, he may require not only compensation in an extra premium, but satisfactory security. Ibid. 60. Such contracts, however, though legal, will always be looked at with greater suspicion than where the lender is a stranger. Ibid. 61. A valid bottomry bond may be made by the owners of a vessel in a foreign or home port. The Brig Draco, 2 Sumner's C. C. R. 157. 62. The admiralty has jurisdiction over all maritime contracts, in personam, and also in rem, where there is a maritime lien, or express pledge, as security; and this embraces, of course, a bottomry bond given by the owner in the home port, where there is an express pledge, as security. lbid. 63. It is not necessary to the validity of a bottomry bond made by the owner of a vessel, that the money borrowed should be advanced for the necessities of the ship, or cargo, or voyage; though it would be otherwise, where the money was borrowed by the master, virtute officii. Ibid. 64. A bottomry bond is a contract for a loan of money on the bottom of the ship, at an extraordinary interest, upon maritime risks, to be borne by the lender, for a voyage, or a definite period. Ibid. 65. An hypothecation of a vessel, or maritime risk, draws after it a maritime lien. Ibid. 66. A bottomry bond need not be recorded under the statute of Massachusetts, (1832, ch. 57,) which provides for the registration of mortgages of personal property. Ibid. 67. A valid bottomry bond will be upheld, where there are no laches on the part of the lender, even against a bona fide purchaser, with out notice. Ibid. 68. A bottomry bond may be upon time, as well as upon a specific voyage. Ibid. 69. If, after the risk on a bottomry bond has commenced, a sale or transfer of the vessel takes place, or the voyage is in any manner broken up by the borrower, the maritime risk terminates, as in the case of a policy of insurance; and the bond becomes presently payable. Ibid. 70. Where it was expressly stipulated in the |