DURESS, CREDIT, OR LACHES MAY INVALIDATE A BOND. 197 and the obligors must be discharged; not only the master, if he gave the bond, but his principal, the owners, alsó. 1 W. Rob. 213, The Heart of Oak. So, if money shall have been advanced on personal credit merely; and this fact is intended to be relied upon, in defense, as a fatal infirmity in the transaction, it should be plainly pleaded. 3 Hagg. 412, The Hersey; vide also, The Trident and The Vibilia, supra. A want of diligence or laches, on the part of a bondholder, in asserting his right or attempting to enforce his lien or claim, would, if seasonably pleaded, be a fatal objection to his recovery. Thus, where an obligee, subsequently to the taking of his bond, suffered a vessel to go several voyages to sea, without enforcing his lien or attempting it, he lost his priority. 4 Cranch, 328, Blaine v. The Charles Carter. Accordingly, whether the validity of a bond is to be contested, or any other legal defense is contemplated, due attention is demanded from the student or practitioner, not only to the pleading but also to the form and terms of the obligation. Such precaution will not be supererogatory; although admiralty courts have been more lenient, and less rigid in adhering to the merely formal rules of pleading and process in the more modern practice of those courts. If, then, a bottomry bond shall have been executed, under a pressure of necessity, for funds to procure stores, supplies, repairs or necessaries, needed to aid in continuing or completing a voyage, which funds, for the want of personal credit of the master and owner, at the port of distress, could not be otherwise obtained, such bond ought to be upheld. On the other hand, if a bond, not thus surrounded 198 EFFECT OF PRESSURE OF NECESSITY AND ITS ABSENCE. and wanting these general features, is likely to be contested; it is but just that the court should be seasonably furnished with proper pleadings and ample proof to enable and justify it, in pronouncing against the bond. This mode of conducting the suit in admiralty courts, would contribute materially to aid them in doing complete justice to all parties, whether appearing there to seek protection against wrong-doers, or to invoke exemption and immunity from the consequences of the judgments, decrees or awards of these courts. In the preceding chapter, the specialty called bottomry bond has been considered in all its varied legal and maritime aspects and bearings. Different maritime codes have applied to this contract a diversity of names. Thus, the French Marine Ordinance has designated it, "contrats à grosse aventure," "contrats à la grosse," "ou contrat au retour de voyage;" while Valin, in his commentary upon the ordinance, Art. 1, Liv. III. Title V., contents himself with the designation, "Le contrat de Grosse." In the judgment of Valin, the bottomry bond should be made in writing, and, as the code prescribes, executed with formality in the presence of a notary and signed by the party, "pardevant notaire ou sur signature privée." It, therefore, would seem that the several formalities of writing, acknowledgment, signature, and (as some have supposed) sealing, were formerly deemed to be essential prerequisites to a valid execution of a bottomry bond. But, there are other simple contracts, of a similar character, well known in commerce, but not required to be executed with so much of formality, which yet are made, by the general maritime law or local legislation, equally binding upon ship and ship-owner. I allude to contracts for necessaries; which, when entered into by 200 CONTRACTS FOR NECESSARIES the master, in a foreign port, as the authorized agent of the owners, for their benefit, and not his own, in a time of distress or necessity, constitute or create a maritime. lien, attaching to the ship and binding personally the ship-owner. These contracts have the effect (and are so designed) to assure and guaranty to a lender repayment of the money paid for repairs or advanced for the ship's use, at the master's request, just as much as do bottomry bonds assure an obligee or holder of this latter instrument. In both, the elements, ingredients, or prerequisites are substantially the same; the security is similar; and, though these simple contracts for repairs and necessaries are less formal in their construction and execution, yet both aim at the same common object, the completion or prosecution of a temporarily suspended or interrupted voyage, and are impressed with the like legal effect and character; that is, the ultimate security and repayment of a lender, who shall assume to advance the moneys required for relief. Notwithstanding the absence of all formality, such contracts, when duly made by the master, upon his own or his owner's credit, and as their authorized agent, under the pressure of necessity, for the purpose of continuing or completing the ostensible object of an unfinished maritime adventure, create a tacit hypothec or lien upon the vessel, and are legally obligatory upon the owners personally. If the legal origin and foundation or commercial purpose of these contracts are thoroughly understood, it will not be difficult to correctly apply the proper principles of a sound maritime jurisprudence to any given or supposable state of facts. Hence, in examining the reported authorities, it may be found that very UPHELD IN ENGLAND AND THE UNITED STATES. 201 little discrepancy in principle is discoverable in them. Though different commercial communities may have differing codes; and the known doctrines of England may have conflicted with the accepted doctrines as recognized in the United States; and though the law in Great Britain, as enacted or administered at different periods of her history, may have been unstable and fluctuating; before the Restoration in 1660, upholding both right and remedy; and afterward, during the reign of Charles II., overthrowing, through the instrumentalities of the common law courts and House of Lords, right, remedy and implied lien for repairs or necessaries furnished, still, in the decisions, there is, at the present day, a general concurrence in 'doctrine and principle. In those countries where the civil law prevails, there has been constant uniformity. In the United States, there has also been a steady adherence to the principles of the general maritime law on this subject and no legislation has been deemed necessary here, unless it be in reference to domestic vessels. But England not only legislated upon the subject in the time of Charles II., but of George I.; and several times during the reign of its present sovereign, in 1840 and 1861. Whatever may have been the prohibitions by courts or legislatures upon this subject hitherto, at the present time, all enactments in England and the United States, as well as the decisions now received as authorities, are in general harmony, especially as they affect the extent and character of a master's power and authority, in a foreign port. The master, it is now generally conceded, under his implied power may hypothecate ship, freight, or cargo, or a portion thereof; or, in a foreign port, under a |