sustaining this doctrine, which accords generally with the principles of all maritime law. Certainly, there may be some exceptions; and sometimes, the general doctrine has been slightly qualified. Thus, in the Rhadamanthe (1 Dods. 204), it was held that the priority of payment, in favor of a subsequent over a prior bond, was a privilege confined to bonds given in a foreign port, and not to be extended to every security which may bind the ship. This privilege or preference springs from an existing, pressing necessity. Without such necessity, the preference ceases, though a bond be formally executed by the master in a foreign port. And two bonds, in this case, were pronounced to be not within the principle of necessity, and therefore, though subsequent in time, were held not entitled to priority of payment over a former bottomry bond.

So, in the Exeter (1 Ch. Rob. 176), money was advanced by several parties for the same repairs, upon the same terms and invitation, all parties acting in concert; but it so happened, that the bond of one of them was dated six days prior to the date of the others. Upon this ground, the party applied for priority of payment, but his application was rejected; and the court held, that there should be no discrimination, but that all the bonds should be paid pro rata, without any prefer

ence.

The property (ship, cargo, and freight) to which the lien for securing these bonds attaches, or its proceeds, constitute the assets, out of which payment is to be made. In paying a bottomry bond, therefore, these assets are to be so marshalled that the property of the owner of the ship shall be first applied to that purpose, then the freight, and finally the cargo. The Romolo, 8

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MARINE RISK JUSTIFIES MARITIME INTEREST.

Irish Jur. 462; Furniss v. Brig Magoun, Olcott, 55; The Dowthorpe, 2 W. Rob. 74, et seq.; The Packet, 3 Mason, 255; The Trident, 1 W. Rob. 35; The Priscilla, Lush. 1; The Betsey, 1 Dods. 289; The Eliza, 3 Hagg. 89; The Sidney Cove, 2 Dods. 1; The Fortuna, 5 Irish Jur. (N. S.) 375; and The Bonaparte, 3 W. Rob. 302.

To justify a maritime interest, there must be a marine risk to run. Without such a risk being incurred, there could be no legal foundation for an unusual or extra interest, to be taken on the loan as stipulated for, in the bottomry bond. This enhanced rate of interest is not inappropriately denominated pretium periculi,— the cost of peril, or price of safety. Sometimes it is enormous; especially in times of the existence or apprehension of warlike operations or hostile relations. Fifteen per cent. and more (even thirty-six per cent.), on the amount loaned has been recovered.

At the termination of the risk, the lender is entitled to payment, and there should be no unnecessary delay in enforcing a bottomry bond, without proper explanation. It should be enforced within an equitable period. The Hercyna, Stuart's Vice-Adm. Rep. (L. C.) 274.

In enforcing bottomry bonds, the admiralty courts must proceed on principles of equity. The Cognac, 2 Hagg. 389.

Merchants, undertaking the agency of a vessel, are obliged to protect the owner against the master's extravagance, dishonesty, or carelessness. The Royal Stuart, 2 Spinks, 258.

Other authorities, on risk, interest, apportionment, priority, laches, necessity, and wages, may generally be cited: Swab. 346, The William ; ibid. 267, The Standard ; ibid. 473, The Rajah of China; ibid. 261, The Janet Wil

CASES DISCUSSED IN MASSACHUSETTS.

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son; ibid. 446, The Indomitable; ibid. 263, The Catharine; Lush. 57, The Edmund; ibid. 24, The Huntley, a case of excessive premium; ibid. 545, S. C. p. 578, The Salacia ; 2 Hagg. 300, The Duke of Bedford; 3 Hagg. 78, The Kennersley Castle; 2 ibid. 53, The Atlas; 14 Jur., The Osmanli; 1 Curt. 340, The Brig Ann C. Pratt; 4 Wash. 662, The Atlantic Insurance Company v. Conrad; 18 How. 63, Carrington v. Pratt; 9 Johns. 29, Fontaine v. Columbian Insurance Company; 11 Pick. 183, Thorndike v. Stone; 9 Met. 237, Bray v. Bates; 3 Mass. 443, Appleton v. Crowninshield; and same parties, 8 Mass. 340.

In these two last cases in Massachusetts, there was an early and very elaborate discussion as to the effect of capture in discharging an obligor. Eminent counsel were engaged. On the side of the plaintiff were Messrs. Prescott and Dexter; on that of the defendant Mr. Story. Chief Justice Parsons was formerly of counsel, but having been appointed a member of the court, could not take part in the discussions of 1807, or 1811, either at the bar or on the bench. The court, at both hearings, were divided; and the decision was made by a majority of the judges sitting. The bond was given by Crowninshield to Appleton in 1793, and the final decision was not obtained until the year 1811. Two suits were brought in the State court: in one the defendant prevailed; in the other, the plaintiff prevailed.

The facts were, that a bond, on a loan for a voyage from Salem to the West Indies, was given in 1793 by the defendant to the plaintiff, for $500, at a maritime interest of three per cent. a month, or at the rate of thirtysix per cent. The schooner Charming Sally arrived at

190

JUDGE STORY'S EARLY PROMISE

Guadaloupe, discharged cargo, reloaded for the home. port, but on her return voyage was captured by a British ship of war, carried into St. Christopher, there libelled, and by the Vice-Admiralty Court condemned. An appeal was taken to the commissioners in England, by whom the former decree of condemnation was reversed, the capture adjudged illegal, and the condemnation irregular. Afterward, under the Jay Treaty of 1794, a restoration was ordered, and full indemnity made to the owner, the present defendant; but the schooner was never specifically returned.

The first suit was debt on the bond. But as the schooner did not return, a majority of the judges sitting sustained the objection made by the defendant's counsel, that this form of action would not lie, as the payment was stipulated, in the specialty, to be made on a contingency, which never happened.

The second suit was assumpsit against the defendant to pay over money which he had received, but ought not ex æquo et bono to retain; and this action was sustained, and judgment given for the plaintiff in 1811, four years after the decision of the first suit, and eighteen years after the execution of the bond, the original cause of both actions.

This double and protracted litigation was during a period of history when American commerce was seriously menaced; our carrying trade interrupted and jeoparded by the British Orders in Council on the one hand, and the retaliatory action of Napoleon, by his Berlin and Milan decrees, on the other.

But it, moreover, especially developed the early professional zeal, learning, and ability of the sole counsel in court of the defendant; and which qualities, as

AND FUTURE EMINENCE.

191

then displayed, have subsequently contributed to render the name of Mr. Justice Story so justly conspicuous in his long judicial career. From 1811 to 1845, it may be said, without disparagement to others, that this eminent and experienced magistrate literally adorned the bench of the First Circuit of the United States.

By him were framed the rules regulating the admiralty practice in the United States. The seventeenth, and especially the eighteenth of these rules have a particular reference to the topics discussed in this chapter, and the practical inception of legal proceedings in suits on bottomry bonds.

This eighteenth rule is as follows:

"In all suits on bottomry bonds, properly so called, the suit shall be in rem only against the property hypothecated, or the proceeds of the property in whosesoever hands the same may be found, unless the master has without authority given the bottomry bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has by his own misconduct or wrong, lost or subtracted the property, in which latter case, the suit may be in personam against the wrongdoer."

The phrase "properly so called," is intended to limit the operation of this rule exclusively to these bonds as duly executed specialties, so that it may not, for any reason, be attempted to be extended to those maritime liens contemplated by the seventeenth rule, and are there termed "maritime hypothecations."

For general convenience I here insert