14. And LASTLY, in a case (s), which was brought by appeal from the Court of Session in Scotland to the British House of Lords, the Lords determined that the persons, who had repaired and furnished a ship in Scotland, the place of the owner's residence, had no claim upon the value of the ship itself for the payment of their demands. The owners of the ship had become bankrupts, and several persons, who had repaired and furnished it at different periods, instituted a suit against

the trustee of the bankrupt's estate, claiming [142] payment out of the proceeds of the sale of the ship in exclusion of the other creditors of the bankrupt, and insisting that all of them, or at least those, whose demands arose since the last voyage made by the ship, and in order to fit her out for another voyage, had by the law of Scotland, and of other European nations, England only excepted, a right of hypothecation or preference for the amount of their respective demands. The cause was heard and re-heard several times in Scotland, and different decisions pronounced there; some in favour of the claim, and others against it. The ultimate decision in Scotland was against the claim; founded principally, as it seems upon a desire to render the law of Scotland conformable to the law of England on this subject (a); for such a claim had been frequently allowed in the Courts of Scotland during a period of four-score years preceding this cause; and the decision was affirmed by the house of Lords on the appeal.

(z) Wood & others v. Hamilton, decided in Dom. Proc. 15th June, 1789. The printed papers are drawn up with great care and learning on both sides,and contain much valuable information.

(a) In the case of Jamieson & others v. Laurie, cited post, part 3.

chap. 1. sect. 10. this is expressly said to have been the ground of the decision. Dr. Wynne's opinion as to the English law, was taken in the course of the proceedings for the information of the Scotch Judges.

I have detailed these cases with the more particularity,} in order to prevent any mistake from the general doctrine delivered by Lord Mansfield in the case of Rich v. Coe, which has sometimes been cited as an authority up to the full extent of the terms, in which [143] it was expressed (1).

14. b. There is however a late determination of the Court of Admiralty, that should be mentioned in this place. An American ship was supplied in the river Thames, by certain merchants of London, with stores and ammunition for a voyage to Venice, and, having performed the voyage and returned to London, was sold under a decree of the Court in a suit instituted by the mariners for their wages. After payment of the wages, a surplus remained in the registry of the Court. The

(1) It does not appear that it has ever been held in the courts of the U. S., that shipwrights and furnishers of supplies to ships, while in the ports of the U. S., have not a lien on the ships, or right to admiralty process to recover the amounts due them. The question has not to my knowledge arisen in the Supreme Court of the U. S., but in the District Court of Maryland, after a very learned discussion, WinchesterJ.decided that a shipwright by the maritime law has a lien on the ship for repairs done and materials found by him, while the ship is in a port of the U. S. Stevens v. The Ship Sandwich, 1 Peters. Rep. 233. note. The same opinion was given by Peters J. in Pennsylvania, in Gardner, &c. v. The ship New Jersey, 1 Peters. Rep. 223. See also 1 Roll. Abr. 533. l. 15. Cro. Car. 296.

The legislature of New York have expresly provided that shipwrights, material men, and suppliers of ships shall have a lien on the ships for the amount of their debts, where the ships are owned by any persons not resident within the state. Act, 10. August, 1798.

master had returned to America and died ; and the owner was insolvent there. The merchants applied to the Court for payment of their demand out of this surplus and in support of their application a distinction was taken between English and foreign ships. The learned Judge of the Court, after having had the cases looked into, said he found it had continued to be the practice of the Court to allow persons of this description to sue against proceeds remaining in the registry, notwithstanding prohibitions had been obtained on original suits instituted by them; and he referred to a particular case of the ship Adventure in the year 1763: and decreed that payment should be made according to the application (b). (1)

It is observable that there was not in this case any person representing the owner to object to the [144] 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.

In the case of the same ship, a person who had acted as agent and broker to the ship in this country, afterwards applied by petition for payment of the balance of his account; but the petition was rejected, by reason of the general and unsettled nature of the account, which was thought more fit for the Court of Chancery, where alone cross demands could be investigated.

(b) The JoHN, Jackson, 3 Rob. A. R. 288.

(1) A similar decision in principle was made in Gardner, &c. . The Ship New Jersey above cited.

15. We have seen by several of the preceding cases, that the master may in foreign parts by po becate 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 boltomry, the bottom or keel of the ship being figuratively used to express the whole body thereof; sometimes also but inaccurately, money lent in this [145] manner is said to run at respondentia; for that word properly applies to the loan of money upon merchandize laden on board a ship, the repayment whereof is made to depend upon the safe arrival of the merchandize 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 voyage, he receives upon its happy termination a greater price or premium for his money, than the rate of interest allowed by law 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 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

(c) The GRATITUDINE, Mazzola, 3 Rob. A. R. 240 and the JACOB, Baer, 4 Rob. A. R. 245.

See as to the extent of an hypothecation of the freight, the last section of this chapter.

the out-fit, 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 (d), 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 opin[146] ion 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 (e), 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 shewn. This point however is rather a matter of speculative curiosity than of useful research, and therefore I shall pursue it no further.

16. 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.

(d) 2 Black. Com. 457.

(e) De Nautico Fanore. Dig. 22. 2. and Codex, 4. 33. See on this

subject, Park, chap. 21. Guidon chap. 18. Emerigon, tom. 2.p.380. and stat. 6 Geo. 1. c. 18. s. 12.