and, if he transcend the prescribed limits, his acts become, in legal contemplation, mere nul103*] lities. Hence, to make a bottomry bond executed by the master a valid hypothecation of the ship, it must be shown by the creditor that the master acted within the scope of his authority; or, in other words, it must be shown that the advances were made for repairs and supplies necessary for effectuating the objects of the voyage, or the safety and security of the ship; and no presumption should arise that such repairs and supplies could be procured upon any reasonable terms, with the credit of the owner, independent of such hypothecation. If, therefore, the master have sufficient funds of the owner, within his control, or can procure them upon the general credit of the owner, he is not at liberty to subject the ship to the expensive and disadvantageous lien of an hypothecatory instrument. Let us now, with these principles in view, proceed to the consideration of the validity of the bottomry bond executed at Port Jackson, which enters so materially into the subsequent one executed at Calcutta. This bond purports, on its face, to have been given for advances, or supplies, furnished for the ship's use, not immediately before its date, but at various times and places; and, from the other evidence in the case, it distinctly appears that the greater part was furnished before and during the voy age of discovery in which she was engaged, under the contract with Messrs. Lord & Williams, and for their immediate benefit. Not the slightest account is given of the earnings of the ship during this long voyage of a year, nor of the terms or stipulations of the charter. This silence would be wholly unaccountable 104*] *if it were not in proof, that Captain Smith was guilty of the most shameful misconduct, and either fraudulently sacrificed, or grossly neglected, the interests of his owner. means clear that these debts were con- [*105 tracted for the use of the ship. The presumption is repelled by the consideration that the necessaries and supplies are expressly stated in the bond to have been furnished by Messrs. Lord & Williams; and the only other creditors who are alleged to have furnished stores, are admitted not to have instituted any suits. It is undoubtedly true that material men, and others, who furnish supplies to a foreign ship, have a lien on the ship, and may proceed in the admiralty to enforce that right. And it must be admitted that, in such a case, a bona fide creditor who advances his money to relieve the ship from an actual arrest on account of such debts, may stipulate for a bottomry interest, and the necessity or the occasion will justify the master in giving it, if he have no other sufficient funds, or credit, to redeem the ship from such arrest. But it would be too much to hold, as was contended for by the counsel for the appellants, that a mere threat to arrest the ship, for a preexisting debt, would be a sufficient necessity to justify the master in giving a bottomry interest, since it might be an idle threat, which the creditor might never enforce; and until enforced the peril would not act upon the ship itself. And even supposing a just debt might, in such a case, be a valid consideration to sustain a bottomry interest in favor of a third person, such an effect never could be attributed to a debt manifestly founded in fraud or injustice. Nor does it by any means follow, because a debt sought to be enforced by an arrest of the ship, might uphold an hypothecation in favor of a third person, that a general creditor would be entitled to acquire a like interest. It [*106 would seem against the policy of the law to permit a party, in this manner, to obtain advantages from his contract for which he had not originally stipulated. It would hold out temptations to fraud and imposition, and enable creditors to practice gross oppressions, against which even the vigilance of good faith of an intelligent master might not always be a sufficient safeguard in a foreign country. The advances made by Messrs. Lord & Williams do not appear to have been originally made upon a stipulation for an hypothecation of the ship. On the contrary, there is the strongest reason to believe that they were originally made These are not the only difficulties which press upon the general credit of the owner, or master, upon the claim of Messrs. Lord & Williams. or both. If there had been a stipulation for an The terms of the charter-party, entered into by hypothecation, it must have been carried into them on the voyage to Calcutta, as well as on effect by the parties on the next ensuing voy- the voyage of discovery, are nowhere explained. age; and, as this was not done, there arises an It was certainly their duty, in the first instance, almost irresistible presumption that Messrs. to apply the freight in their hands, earned in Lord & Williams looked for their reimburse these voyages, to the discharge of the debt due ments out of the freight of the voyage in which to them for advances. What was the amount the ship was then engaged by them. If, indeed, of this freight, and what was the manner in there had been a stipulation, originally, for an which it was to be paid, and how, in fact, it hypothecation, it must be deemed, in point of was paid or appropriated, are inquiries which law, to have been waived by the omission to have never been answered. These inquiries have had it attached to the first voyage then are at all times, and in all cases, important, but next to be prosecuted; and the party who thus are emphatically so in a case where there is but waives his right cannot be permitted, at a sub- too much reason to suspect that the interests of sequent time, and under a change of circum-the owner were wilfully abandoned by the fraud stances, to re-instate himself in his former con- or the folly of the master. dition to the injury of the owner. It is said It is incumbent upon the creditor who claims that the ship might have been arrested for these an hypothecation, to prove the actual existence advances; and that, in point of fact, the captain of the necessity of those things which give rise was put in jail on account of debts contracted to his demand; and if, from his own showing, for the ship, and was relieved from imprison- or otherwise, it appears that he has had funds ment by Messrs. Lord & Williams. That Cap- of the owners in his possession which might tain Smith was imprisoned on account of some have been applied to the demand, *and [*107 debts appears in the evidence, but it is by no he has neglected or refused so to do, he must Wh fail in his claim. So, if various demands are Upon the whole, it is the opinion of the court | As the bottomry bond of Messrs. Lord & Williams has not been established, the subsequent bottomry bond executed at Calcutta, so far as it includes and covers the sum due on the first bond, cannot be sustained. The plaintiffs, in this respect, can claim only as the virtual assignees of Messrs. Lord & Williams, with the assent of the master, and the same defects which infected the original title pass along with 108*] the *muniments of that title under the assignment. And this observation leads to the consideration of the validity of the bottomry bond executed at Calcutta, as to the sum remaining, after deducting the amount of the first bond. Notwithstanding some obscurity in the testimony, it must be taken as true, from the express acknowledgments of Captain Smith, that the whole sum expended in repairs and supplies of the ship in Calcutta, including the sum of ten thousand seven hundred and thirteen sicca rupees, paid on account of the first bottomry bond, did not exceed the sum of eighteen thousand sicca rupees. It follows, therefore, that a sum, 1. It is stated by Blackstone in the Commentaries, vol. 2, p. 457, that the contracts of bottomry and respondentia 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. This opinion is doubted by Mr. Abbott, in his Law of Shipping, part 2, c. 3, s. 15, p. 163 (Story's ed.), who remarks, that there is no mention in the text of the civil law, of this contract entered into by the master of the ship in that character. This remark does not appear to have been made with the usual accuracy of that excellent writer; for, in the law, De exercitoria actione in the Pandects, the master is authorized to take up money upon the credit of the ship when necessary; and Bynkershoek attributes the origin of maritime hypothecation to the Roman law, and states that it was originally confined to hypothecation by the master, from necessity, in foreign parts, and by degrees came to be entered into by the owners of the ship and cargo for more general purposes. Q. J. Priv. 1. 3, c. 15, De Contractu qui decitur, Bodemery. The same great jurist also states in his Q. J. Pub. c. 19, p. 151, of Du Ponceau's translation, that the lender is entitled to the benefit of his security, even if the moneys advanced be misapplied by the master, and not laid out in the refitting the ship. This, however, must be understood of a bona fide case, a little more than six thousand rupees, was expended in these supplies and repairs. By their charter-party with the master, the plaintiffs agreed to pay an advance freight to Captain Smith of twelve thousand sicca rupees for the voyage to Philadelphia. There was, therefore, within their own knowledge, an ample fund provided for all the repairs and supplies necessary for the voyage; and this fund absolutely within their own control, if they were disposed to act for the interest of the owners, instead of lending their aid still farther to involve them ín difficulty and distress. There is, therefore, but too much reason to believe that the plaintiff's were not unwilling to derive undue advantages from the intemperance and negligence of the master, whatever might be the sacrifices brought upon the owners. The plaintiffs expressly stipulated, in their charter-party, for the right to from a total want of confidence in [*109 appoint a new master for the voyage, obviously Captain Smith. They would not even suffer the repairs and loading of the ship to be made, except under a master specially in their own confidence. They retained Captain Smith in the nominal command of the ship until all their own purposes were answered, and then discarded him with as little ceremony as any indifferent personage. Yet, at the very moment that they were withdrawing their whole confidence from him, they advanced the whole freight of the voyage, to be applied at his own pleasure to any objects disconnected with the voyage. They could not be ignorant that the master was not about to return to the home of the owner, and that the ship was; and the argument which imputes to them a collusive combination with the master, is certainly not without considerable weight. At all events, here funds are shown to exist sufficient to meet the necessities of the ship, and, consequently, a resort to the extraordinary expedient of an hypothecation was not justified in point of law. On the whole, it is the opinion of the court, that the decree of the Circuit Court ought to be affirmed with costs. Decree affirmed.1 where there is no fraud on the part of the lender, nor collusion between him and the master. Roccus lays down the following rules on this subject: "Verum adverte, quia quatuor requiruntur, ut dominus navis teneatur ad restitutionem pecuniæ mututuatæ. Primum, ut causa sit vera, et in illam causam pecunia sit versa, licet precise creditor non teneatur habere curam, ut in illam causam pecunia expendatur. Secundo, quod mutuans sciat magistrum ad id esse propositum. Tertio, ut non plus mutuetur, quam sit navi necessarium dicte refectioni, vei causæ. Quarto, ut in eo loco comparari possint res illæ necessariæ, ubi mutuum fuit He adds, that if the master deceive the factum." lender, either in the repairs or the price of the articles purchased, the owner is responsible, and also for money borrowed to repay other moneys advanced to refit the ship; nor is he discharged even if the master converts the money to his own use. Notabilia de Nav. et Naul, note 23, 24. The Consolato del Mare recognizes the power of the master to bind the owners in this manner, excepting in cases of fraud and misconduct, c. 245. By the ancient law of France, the master might hypothecate the ship when abroad, with the consent of the mate and pilot, who were required to certify upon the ships journal the necessity of the loan, and its application. Ordonnance de la Marine, liv. 2, tit. 1, 112'] A *[Prize.] THE VENUS. Jademerowsky, Claimant. A case of further proof. the prize court; and if the court should be of opinion, that the property does not belong as claimed, the captors will be entitled to condemnation, without specifically proving to whom it does belong. The recital in the power from Jones to Diamond cannot be sufficient PPEAL from the decree of the Circuit Court to show the interest of Mr. Jademerowsky. for the District of Georgia. This ship hav-*The recital in a deed binds only the [*114 ing taken in a cargo at London, proceeded to parties, and those claiming under it; we are Portsmouth, and from thence, on the 12th of entitled to the production of the original power, April, 1814, sailed for St. Bartholomews, under duly authenticated. The certificate of the convoy of a British ship of war. From St. Russian Consul-General is no proof of the real Bartholomews she sailed for the Havannah, but property. The failure on the part of the superon her passage thither was captured and sent cargo to testify, positively, as to the property, into the island of St. Thomas, for adjudication, is, in the prize court, always held strongly by a British cruiser. Upon being released from against the title of the claimant. The cargo this detention, she abandoned her destination was purchased and loaded in a British port, for the Havannah, and was proceeding to and the ship had an alternative destination to a Amelia Island, when she was captured by the British colony. The voyage is different from flotilla under the command of Commodore that authorized in the original power from Mr. Campbell, and sent into the port of Savannah, Jademerowsky to Jones; and, therefore, such where the vessel and cargo were libeled as prize. power either never existed or it is falsified by the The ship was restored by consent, in the court evidence, and must be repudiated by the court. below, as Russian property; the cargo was con- Pinkney, in reply, agreed that, in a suspicious demned as prize of war, and an appeal entered case, restitution could not be demanded upon from that sentence by the claimant. The proofs the original evidence; but this is a case of of property consisted: 1. Of a recital in a power further proof, and there is no evidence of fraud of attorney, from one Jones, the alleged agent, or unneutral conduct to preclude it. The docuin London, of the claimant (who was stated to mentary evidence expresses neutral account and be a Russian merchant domiciled at St. Peters- risk. By the law of nations, the papers must burgh), to Mr. Diamond, the supercargo. 2. be supported by the examinations in preparaA certificate of property from the Russian Con-torio; but, there is no determination which war113] sul-General in London. 3. The testirants the position, that the supercargo must mony of Mr. Diamond, and other witnesses, swear to anything more than belief. He is, in taken in preparatorio, expressing their belief that the property was as claimed. Charlton, for the appellant and claimant, fered to read affidavits in the nature of further proof. Story, J. Until the cause is heard, further proof cannot be admitted. Marshall, Ch. J. If, upon the opening, it appears to be a case for further proof, then it may be admitted instanter, unless, indeed, the court should be of the opinion that the captors ought to be allowed to produce further proof also. The cause is before us as if in the inferior court. Charlton. We contend that it is a case entitled to further proof, and that there is no circumstance of fraud or mala fides to preclude it. The Attorney-General, contra. It is incumbent upon the claimant to make out his title by competent testimony, according to the rules of da Capitaine, art. 19. Usage also required that a proces verbal of the transaction should be copied from the journal, and signed by the parties, whose consent was necessary. But Valin informs us that these formalities were merely required in order to disculpate the master: that they were not of the essence of the contract, and the omission of them did not invalidate the security of the lender, who was not obliged to prove that the sums advanced had been appropriated to the use of the vessel; and he cites a sentence of the tribunal at Marseilles, of the 9th of August, 1748. in support of his exposition, which decision (he states) is founded upon the first law. s. 9, Dig. de exercitoria actione. He remarks that Loccenius, de Jure Maritimo. 1, 3, c. 8, n. 7 and 8. Vinnius in Peckium, fol. 183. n. A., and Casaregis. Disc. 71, n. 15, 33 and 34, hold, that the lender should prove the necessity of the loan in order to prevent ship-owners from being the victims of the frauds and malversations of masters. But Valin alleges that this rule had been rejected by the usage of trade as too refined and subtle: and that to enable the lender to enforce his claim, it is sufficient to show this respect, in the same predicament with the master. In both cases, it is matter, not of positive knowledge, but of inference from the circumstances which *come to his knowl. [*115 edge. The consular certificate is a part of the ship's papers, and, as such, is necessarily a part of the documentary evidence in the cause. The recital of the procuration is said not to be admissible at common law; but, this court is now sitting as a court of prize. The cause was this day ordered to further proof on the part of the captors and claimants. Further proof ordered. 1.-1 Rob. 227, The Odin; 3 Rob. 68, The Neptunus. 2.-1 Rob. 133, The Argo. that he had acted with good faith; that is to [Local Law.] PRESTON v. BROWDER. The act of assembly of North Carolina, of November, 1777, establishing offices for receiving enof the state, did not authorize entries for lands within the Indian boundary, as defined by the treaty of the Long Island of Holston, of the 20th of July, 1777. The act of April, 1778, is a legislative declaration explaining and amending the former act, and no title is acquired by an entry contrary to these laws. tries of claims for lands in the several counties RROR to the Circuit Court for the District in equity; and, that the conveyance from Dunlap to Rhea, and from Rhea to the lessor of the plaintiff, vested a complete legal title in him, and, therefore, he was entitled to a verdict." Which charge and instruction the court refused to give to the jury; but, on the contrary, charged and instructed them, "that the said entry and grant were both null and void, and vested no title whatever in the said Dunlap, because, at the time of making said entry, and obtaining said grant, the land included therein lay in a part of the country where the laws of North Carolina had not authorized their officers to permit lands to be entered, or to issue grants might have been made in the form required by law, yet no interest whatever passed [*118 from the state of North Carolina to Dunlap thereby, and, therefore, they ought to find a verdict for the defendant." A verdict rendered accordingly, and a judgment prostruction the plaintiff's counsel excepted, and nounced thereon. To which charge and inthe cause was brought into this court by writ ERROR therefor; and although the entry and grant ejectment commenced by the plaintiff in error in that court. On the trial of the cause, the plaintiff produced and read in evidence an entry 116*] made on the 25th of February, *1778, in the name of Ephraim Dunlap, for 400 acres of land in the point between Tennessee and Holston rivers. Also, a grant to said Dunlap: issued in virtue of, and founded upon, said entry, under the great seal of the state of North Carolina, dated the 29th of July, 1793; which grant was duly registered. The plaintiff also produced, and read in evidence, a deed of conveyance, with the certificates of probate and registration indorsed, from Dunlap, the grantee, Also, a deed of conveyance to John Rhea. of error. was Key, for the plaintiff in error. The question in this cause turns upon the validity of an act of assembly of North Carolina of April, 1778, repealing a former act of November, 1777, c. 1, s. 3, under which the plaintiff's entry was authorized. It is an ex post facto law, which the state is incompetent to pass; its own courts have decided, that a law depriving a university This court has determined that a law in the of its lands was unconstitutional and void.1 title, the usufruct only of this waste land was reserved to them; and the legislature might grant lands subject to the extinguishment of a mere temporary arrangement, and the title of their title to the domain of property. This was the natives was extinguished by the treaty of Tellico. There was, therefore, nothing to prevent an entry of lands anywhere within the territorial limits of North Carolina. from said Rhea to the lessor of the plaintiff. It was also proved that the land lies within the boundaries of what was the state of North Carolina at the time of making said entry, and within the county of Washington; likewise, within the territory ceded by the state of North nature of a convention or contract cannot be so Carolina to the United States, in 1789, and repealed as to devest rights of property prewithin the now county of Blount, in the Dis-viously acquired under it. As to the Indian trict of East Tennessee; that it lies on the south side of Holston River, and between Big Pigeon and Tennessee River, and west of a line described in the 5th section of the act of the general assembly of North Carolina, passed in April, 1778, chap. 3. Also, within the tract of country secured to the Indians in 1791, by the treaty of Holston, and that the Indian title thereto was relinquished in 1798, by the treaty of Tellico. The defendant produced, and gave *Pickens and Jones, contra. 1. The [119 in evidence, a grant from the state of Tennessee correct mode of ascertaining the nature and to himself, made out and authenticated in the effect of the contract (as it has been called) bemanner prescribed by the laws of Tennessee, tween the state and the plaintiff, is by a referand dated the 18th of May, 1810, which covers 1777, connected with the local history of that ence to the plain interpretation of the act of and includes the whole of the land in his pos- period, and the circumstances of the entry. session, and for which this suit was brought. The law provides that entries may be made in 117*] The *plaintiff, by his counsel, moved the court to charge and instruct the jury, "that the several counties of the state of all lands therean entry was actually made with the entry-taker in, not previously granted, and which shall of Washington county, within which the land have accrued to the state by treaty or conquest; lay; that the entry was evidence that the conmost manifestly implying the necessity of a sideration money was paid as required by law; previous extinguishment of the Indian title. that paying the consideration money, and mak By the treaty of the Long Island of Holston, ing the entry, created a contract between the of the 20th of July, 1777, art. 5th, a boundary state of North Carolina and the said Dunlap, between the Indians and the whites is defined; which vested a right in him to the land in dis and, by art. 6th, the Indians are guarantied pute, and that it was not in the power of the against all intrusion. The whole system of legislature, at a subsequent period, to destroy in question, with the express view of preventlocal laws establishes a police over the territory the right thus vested, or rescind said contract, without the consent of the said Dunlap. Thating the natives from being disturbed in the enhaving the same land afterwards surveyed and joyment of their rights. In 1778, finding that granted, in the manner prescribed by the laws individuals, in the situation of the plaintiff, of North Carolina, vested in the said Dunlap and his heirs a complete title both at law and 1. Heywood, Trustees of the University v. Foy. 2.-6 Cranch, 87, Fletcher v. Peck. either wilfully or through mistake, had made extending their settlements to the westward, so entries within the Indian reservation, the legis- as to encroach on lands set apart for the Indian lature passed an act recognizing the limits fixed tribes; that these encroachments had produced by the treaty of the year preceding, prohibit- hostilities; and that, on the 20th of July, 1777, ing future entries, and avoiding those already a treaty of peace had been concluded at Fort made within those limits. 2. But supposing Henry, on Holston River, near the Long Isthe entry to have been valid as a claim, or land, between commissioners from the state of right of pre-emption, against other citizens, it North Carolina and the chiefs of that part of was not lawfully consummated by a subsequent the Cherokee nation called the Overhill Indians; survey and patent. Is the entry of such stern, and that a boundary between the state and the unbending authority, as, by relation back, to said Indians was established. When [*122 dispense with the necessity of subsequent steps? the legislature of North Carolina were passCertainly not. By the act of 1783 the Indian ing the act of November, 1777, establishing 120*] *boundary was changed, in conformity officers for receiving entries of claims for lands with the treaty of Hopewell, and the issuing of in the several counties within the state, it is grants for lands within the reservation was improbable that the foregoing circumstances prohibited. The land in question continued were not contemplated by them; and hence by that treaty, and by a subsequent treaty made must have arisen the restriction in the act, as in 1791, between the United States and the to lands "which have accrued, or shall accrue, Cherokees, within the limits of the latter. The to this state, by treaty or conquest." If this be survey and grant were made in opposition to not the ground or reason of the provision, it all these treaties and laws; and, in 1789, North will be difficult to find one on which it can Carolina ceded to the United States this terri-operate. It may be asked, where was the land tory, in which the state of Tennessee was erect- which was to accrue by treaty or conquest, if ed. In 1791 the treaty of Holston once more not within the chartered limits of that state? guarantied the Indians against intrusion. So If it was in a foreign country, or from a sister that the plaintiff's counsel has to bear up, not state, the restriction was unnecessary, because, only against the municipal laws of the country, in either case, it was not within the limits of but against the most solemn pacts and conven- any county within that state, and, of course, tions. not subject to be entered for. The restriction Key, in reply. The plaintiff's right, com- must apply, then, to lands within the chartered menced by, a valid entry, could never be im-limits of the state, which it contemplated would paired by subsequent laws and treaties. The be acquired, by treaty or conquest, from the primitive Indian title was merely subordinate, Indian tribes, for none other can be imagined. and subject to extinction. If, by the payment It is not to be presumed that the legislature inof the fees upon his entry, the plaintiff acquired tended, so shortly after making the treaty, to an incipient right under the law then in force, violate it, by permitting entries to be made west it cannot be affected by any subsequent act. of the line fixed by the treaty. From the His grant is dated 1793, and a presumption preamble of the act, as well as other parts of it, thence arises that he had complied with all it is clearly discernible that the legislature inpreceding requisites. The cession of 1789 con- tended "to parcel out their vacant lands to intains a reservation for perfecting titles where dustrious people, for the settlement thereof, entries had been made. The act of 1778 shows and increasing the strength and number of the that the former law had allowed and counte-people of the country, and affording a comfortnanced entries in Washington county; it is not able and easy subsistence for families." Would 121] a declaratory, but a repealing *statute, these objects be attained by permitting settleshowing that the first law had not been mis-ments encroaching *on the lands lately [*123 taken nor misconstrued. Todd, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: How set apart, by treaty, for the use of the Indian tribes? By provoking hostilities with these tribes, and diminishing the strength of the country by a cruel, unnecessary, and unprofitable warfare with them? Surely not. The question now to be decided by the court ever broad and extensive the words of the act is, whether the charge and instructions required may be, authorizing the entry-takers of any by the plaintiff's counsel ought to have been county to receive claims for any lands lying in given, and whether the one given was correct. such county, under certain restrictions, yet, In the construction of the statutory or local from the whole context of the act, the legis laws of a state, it is frequently necessary to re-lative intention, to prohibit and restrict entries cur to the history and situation of the country, in order to ascertain the reason, as well as the meaning, of many of the provisions in them, to enable a court to apply, with propriety, the different rules for construing statutes. It will be found, by a recurrence to the history of North Carolina, at the time of passing this act, that she had, but a short time before, shaken off her colonial government and assumed a sovereign independent one of her own choice; that, during the colonial system, by instructions and proclamations of the governor, the citizens were restrained and prohibited from 1.-6 Cranch, 87, Fletcher v. Peck. from being made on lands reserved for Indian tribes, may be discerned. And this construction is fortified and supported by the act of April, 1778, passed to amend and explain the act of November, 1777, the 5th section of which expressly forbids the entering or surveying any lands within the Indian hunting grounds, recognizes the western boundary as fixed by the above-mentioned treaty, and declares void all entries and surveys which have been, or shall thereafter be made within the Indian boundary. It is objected that the act of April, 1778, so far as it relates to entries made before its passage, is unconstitutional and void. If the reasoning in the previous part of this |