effecting her voyage in safety. If she is lost on such voyage, the bond is forfeited thereby. On this account a higher rate of interest than legal interest, called maritime interest, is allowed, as a sort of pretium periculi. The Atlas, Clark, 2 Hagg. 52.; Boddington's Noyes, Ibid. 425. 230. The Court has the power, and has in some few instances exercised it, of reducing the amount of maritime interest stipulated for under a bottomry bond; but it will lean to support the rate of interest agreed for unless excessive. Maritime interest at 14 per cent. on a bond, reduced by the registrar and merchants, (on reference to them,) to 10 per cent., increased afterwards by the Court to its original rate of 14 per cent. The Zodiac, Scott, 1 Hagg. 326.

231. The Court has authority to reduce the premium on a bottomry bond, if excéssive or fraudulent; but it will only exercise this authority on clear and indisputable cause shown, and with great caution. 201. per cent. charged in a bottomry bond, and disallowed on reference to registrar and merchants, who substituted 12 per cent., allowed by the Court, and registrar and merchants report overruled. The Cognac,

Ewen, 2 Hagg. 386.

232. The Court of Admiralty has jurisdiction to adjudicate upon the premium. charged in a bottomry bond, and will interpose its authority to reduce it where the rate of interest is excessive. Reference to

236. A bottomry bond pronounced for, with 4 per cent. interest from the time it became due. The St. Catherine, Sinclair, 3 Hagg. 250.

237. A bottomry bond having been disputed and afterwards admitted, but subject to a reference to the registrar and merchants as to accounts, disbursements, and

rate of premium, objections to their report as to which had been partially admitted bond at 4 per cent. from the time it beand partially overruled; interest on the The Cognac, Ewen, 2 Hagg. 393. came payable, pronounced for, with costs.

XX. PRACTICE IN SUITS ON

the bond is due.

233. A., intending to go a voyage, entered into a bottomry bond; but the ship not going the voyage, but lying all along safe in the port of London, the Court decreed the defendant should lose the premium, and accept of his principal with usual interest. Deguilder v. Depiester, 1 Vern. 263.

See antè, Nos. 163. 213. 228.

she was bound, vid Carthagena. She proceeded on her voyage, but suffered so much damage from the weather that she was compelled to put into Plymouth, where having been surveyed and reported unseaworthy and not repairable, the voyage was abandoned. The bond having been put in suit in the Court of Admiralty, Held, that under such circumstances the bondholder was entitled to payment of his bond at once, and that part of the risk having been incurred (by the voyage from Shields to Plymouth), the interest could not be severed, and the full rate of interest allowed in the bond pronounced for accordingly. The Dante, 4 Notes of Cases, 408. But semble, that in the case of a ship not

238. The arrest of a ship by the holder of a bottomry bond before the bond was due, Held to have been justifiable on the ground that the ship was going to leave the kingdom. Aliter had there been an unfounded apprehension only thereof. Protest overruled. The Jane, Berkeley, 1 Dodson, 461. 464.

See antè, No. 178.

leaving the port in which the bond had been given, or being seized there under an embargo, or of the master while there changing her destination to a better market, the bondholder would be similarly entitled to payment of his bond, but no risk being then incurred, no maritime interest would be due. Ibid.

87. In making up the decree, the sum lent and the bottomry interest are to be considered as the principal, and common interest upon this amount is to be added from the time the bond became due to the time of the decree. The Packet, 3 Mason's (AMERICAN) Rep. 255.

tution of proceedings.

239. There are few questions in the Court of Admiralty to which any precise limitation is prescribed, but there is a principle of limitation in the administration of every system of jurisprudence to be derived from the nature of things which entitles the Court to avail itself of the maximvigilantibus non dormientibus subveniunt leges. The Rebecca, Maddick, 5 C. Rob.

102.

240. In questions of bottomry the Court is bound to expect particular vigilance; because although bonds of this kind are to be supported with a high hand when clear and simple, yet they must be considered in their recent origin and with a view to all the circumstances on which their honest validity may depend. Ibid.

241. A bottomry bond is a negotiable instrument, which may be transferred and put in issue by the person so acquiring it. But where such bond was put in suit originally on the part of a French merchant in 1792, suspended during a subsequent war, not enforced on the recurrence of peace, and, at an interval of twelve years, attempted to be further prosecuted on the part of an English merchant, to whom it had been endorsed, the Court would not allow it to be put in execution under the original proceedings. Ibid.

242. Parties who had abandoned a former suit, instituted by them to compel the payment of two bottomry bonds, Held not to be at liberty, no strong grounds being shown, to bring a second suit upon the same bonds; such suit dismissed with costs and demurrage. The Fortitudo, Henrickson, 2 Dodson, 58.

3. As to proceedings in·

243. In proceedings in the Court of Admiralty the suitor is entitled, subject to

88. The lender on bottomry is primâ facie presumed to have made inquiries as to the apparent necessity of repairs, and to have acted upon the facts and circumstances as inade known by the survey to the master. The ship Fortitude, per Story J., Circuit Court of the United States at Boston, May term, 1838, Curtis's (AMERICAN) Adm. Dig. 93.

89 The onus probandi, that the master has other funds, or that the owner has a personal credit in that port, lies not upon the lender on bottomry, but on the owner who resists the bottomry bond. Ibid.

mode of proceeding, whether by act on petition and affidavits, or by plea and proof. Libel on behalf of bondholders in a cause of bottomry, the admission of which was opposed as being an unusual mode of proceeding in such suits, admitted to proof; the Court, however, intimating that, if any unnecessary expense or hardship should by such a mode of proceeding be imposed on the parties opposing the validity of the bond, it would hold the bondholder responsible for the costs thereof, though the validity of the bond should be ultimately pronounced. The Minerva, Crawford, 1 W. Rob. 169.

244. In cases of bottomry it is not necessary, as a general proposition, for the bondholder in the first instance to mention in the act all the circumstances, for he relies on the execution of the bond. The Mary Ann, 10 Jur. 255., 4 Notes of Cases, 376.

245. The general principle as to bottomry bonds is that all presumptions are Such bonds in favour of the transaction. are not to be affected to the prejudice of the bondholder but on proof of the objections raised against them. The Duke of Bedford, Morris, 2 Hagg. 300.

246. The presumption arising from the act of the master in the execution of a bottomry bond is in its favour, and that he would perform his duty honourably, and not unnecessarily subject the property of his principal to heavy burthens. The Vibilia, Richardson, 1 W. Rob. 5.

247. Bottomry bonds, duly executed and in proper form, are sacred instruments only so far that the legal presumption is in favour of their validity, and the onus probandi is in a great measure thrown on the parties seeking to impeach them, and they

90. The libellant on a bottomry bond is always expected to prove by evidence other than the bond itself, that the money was lent, or the repairs made and materials furnished, to the amount for which the vessel is liable, that they were necessary to enable her to perform her voyage, or for her safety, and could not otherwise be obtained. He should exhibit an account of the items with the usual proofs to support them, that the Court may judge whether they were necessary for those purposes. Crawford et al. v. The William Penn, 3 Wheaton's (AMERICAN) Rep. 484.

must prove their case in the same way as a man admitting his signature to an ordinary bond must prove its invalidity or show that he has discharged it. The Mary Ann, 10 Jur. 254., 4 Notes of Cases, 376. 248. The due execution of a bottomry bond in a foreign port Held not to be sufficiently proved by a mere formal affidavit of persons resident in this country, of applications for payment and of the sums advanced being still due. The Sydney Cove, Fudge, 2 Dodson, 6.

249. Two bottomry bonds of old date Held not to be sufficiently proved. Application to give further proof refused. Ibid.

251. Three bottomry bonds of the same tenour having been put in suit by three separate actions, motion (not opposed) to consolidate the same, granted. The Albion, Best, 1 Hagg. 333.

252. In a cause of bottomry, on motion in behalf of the bondholder, the proctor of the assignees of the owner directed to bring in all the affidavits and proofs then in his power or possession before the bondholder should be required to return his answer to the statement of the assignees, and on the further affidavits and proofs being so brought in, the bondholder allowed further time to send out to the Mauritius. The Orelia, Hudson, 3 Hagg. 77. n.

1

253. In a suit on a bottomry bond, the bond having been at first pronounced for, though exparte, and the assignees of the owners having written first (in form) to the

act on petition, their counsel began, but the Court, after partial hearing of one of the counsel for the owners, called on the counsel for the bondholder to begin. Ibid. 79. n.

XXI. COSTS IN CAUSES OF

254. Partial disallowances made by the registrar and merchants on reporting accounts under a bottomry bond (on a reference to them thereon), Held not to affect a previous title to costs. The Tartar, Tharp, 1 Hagg. 15.

255. In a cause of bottomry, in which the bond had been pronounced for, but on a reference to the registrar and merchants, nearly one fourth of the original demand had been disallowed; bondholder allowed his costs up to the time of the reference, but condemned in those of the reference and of the suit subsequently thereto. The Eliza, Walwick, 1 W. Rob. 328., 1 Notes of Cases, 305.

256. Semble, that if the registrar and merchants were, by their report on a bottomry bond, to reduce the amount due on the bond from a considerable to a small amount, the bondholder would not be entitled to costs. The Ocean, 10 Jur. 506., 4 Notes of Cases, 571.

257. Where a bottomry bondholder sues in the Court of Admiralty on his bond and succeeds in his suit, and even where, on reference to the registrar and merchants, some, though no very large deductions, are made from the amount claimed, the usual and ordinary course is for the Court, on pronouncing for the bond, to accompany such a decree with costs. Ibid.

258. Where the case set up by the bondholder abounded in suspicion, the Court, although it had pronounced for the bond, Held the opponents of the bond justified in prosecuting the investigation, and therefore declined giving the bondholder his costs. Ibid.

See antè, Nos. 47. 107. 128. 132. 134. 150. 237. 243.

3. A small amount of freight (817.) remaining in the registry of the Court of Admiralty (all demands against the freight entitled to priority having been deducted) was claimed by the ship's broker under a deed of agreement with the master and part-owner, which, it was contended, conveyed the freight to him, the broker. The

of the part-owner: Held, that neither as the ship's broker nor under the deed was the broker entitled to receive the freight in opposition to the part-owner, and the balance decreed to be paid out to the assignees accordingly. Dowthorpe, 2 W. Rob. 87., 3 Notes of Cases, 623.

4. A ship's broker cannot assign the freight of a part-owner without his direct authority and concurrence, though he be a creditor against all the owners of the vessel for money advanced for the service of the ship. Ibid.

1. Capitulations are of the nature of ransoms, but admitting of very favourable distinctions. They have always been favourably supported, and it is of great importance to the general interests of the captured that they should be sustained. Ships taken at Genoa, 4 C. Rob. 403.

2. A commutation was paid by the Genoese government for ships seized by the commander of a British fleet as prize in the port of Genoa. Application made by the Genoese government for repayment thereof, on the ground that the ships were protected by the terms of the capitulation entered into by the British commander and the Austrian authorities in possession of Genoa at the time, and referred to the Court of Admiralty, rejected; the Court

Prize Act, but which expired with the last war.

G

CAPTURES ET CONTRA.

1. Persons put on board a cartel ship, with their own consent, by the government of the enemy, to be carried to their own country, are bound to do no act of hostility. Therefore, a capture made by such persons of a vessel of their own country from the enemy is not a recapture in contemplation of law, and gives them no title to salvage, and the former owner no title to claim the vessel. Property so recovered decreed to be given over to the disposal of the Crown. The Mary, Folger, 5 C. Rob. 200.

2. Blockading ships are at liberty to take a prize if it come in their way, but they are not to chase to a distance, for that would be a desertion of their duty of blockade. La Melanic, Lafitte, 2 Dodson, 130.

As to the right of convoying ships to effect captures and recaptures—see CONVOY, cap. IV.

II. OF THE PARTIES ENTITLED TO THE PRIVILEGES OF ET CONTRA.

3. A French enemy ship taken by a privateer having a letter of marque against

tioned for a letter of marque against France, which, however, had not at the time of capture been granted, condemned as a droit of Admiralty taken by non-commissioned captors. Le Grand Terrein, 1 Hay & Marriott, 155.; La Bonne Amitié, Ibid. 160.; The Xavier, Ibid. 219.; La Mignone, Ibid. 221.

a

4. A vessel which had been fitted out as

private ship of war applied for letters of marque, which the Commissioners of the Admiralty on the 29th of December granted a warrant to the Judge of the Admiralty to issue; but by reason of the pressure of business in the Admiralty Court the letters of marque did not issue until the 1st of January following. A prize taken by such vessel conjointly with a commissioned ship, on the 30th of December, condemned (save as to the share of the commissioned ship therein) as a droit of Admiralty; the application and warrant for the letters of marque being Held insufficient to vest any interest in intermediate captures until the letters of marque were actually issued. The Twee Gesuster, note to Cape of Good Hope, 2 C. Rob. 285.

5. A prize captured by a revenue cutter having a letter of marque, condemned as a droit of Admiralty, the master not having

question solely between the government and the