The Aurora. 1 W. their reimbursements out of the freight of the voyage in which the ship was then engaged by them. If, indeed, there had been a stipulation, originally, for an hypothecation, it must be deemed, in point of law, to have been waived by the omission to have had it attached to the first voyage then next to be prosecuted; and the party who thus waives his right cannot be permitted, at a subsequent time, and under a change of circumstances, to reinstate himself in his former condition to the injury of the owner. It is said that the ship might have been arrested for these advances; and that, in point of fact, the captain was put in jail on account of debts contracted for the ship, and was relieved from imprisonment by Messrs. Lord and Williams. That Captain Smith was imprisoned on account of some debts appears in the evidence, but it is by no means clear that these debts were contracted for the use of the ship. [*105 ] 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 and 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 of the occasion will justify the master in giving it, if he had 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 [*106 ] to acquire a like interest. It 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 practise gross oppressions, against which even the vigilance * The Aurora. 1 W. and good faith of an intelligent master might not always be a sufficient safeguard in a foreign country. These are not the only difficulties which press upon the claim of Messrs. Lord and Williams. The terms of the charter-party, entered into by them on the voyage to Calcutta, as well as on the voyage of discovery, are nowhere explained. It was certainly their duty, in the first instance, to apply the freight in their hands, earned in these voyages, to the discharge of the debt due to them for advances. What was the amount of this freight, and what was the manner in which it was to be paid, and how, in fact, it was paid or appropriated, are inquiries which have never been answered. These inquiries are at all times, and in all cases, important, but are emphatically so in a case where there is but too much reason to suspect that the interests of the owner were wilfully abandoned by the fraud or the folly of the master. It is incumbent upon the creditor who claims an hypothecation, to prove the actual existence of the necessity of those things which give rise to his demand; and if, from his own showing, or otherwise, it appears that he has had funds of the owners in his posses[*107]sion which might have been applied to the *demand, and he has neglected or refused so to do, he must fail in his claim. So, if various demands are mixed up in his bond, some of which would sustain an hypothecation and some not, it is his duty so to exhibit them to the court that they may be separately weighed and considered. And it would be perilous, indeed, if a court were called upon to grope its way through the darkness and intricacies of a long account, without a guide, and decide upon the interests of the ship-owner by obscure and doubtful lights which here and there might cross the path. Upon the whole, it is the opinion of the court that the bottomry bond of Messrs. Lord and Williams cannot be sustained as a valid hypothecation, upon the proofs now before the court. It It appears to have been founded, to a very large amount, upon advances made by Messrs. Lord and Williams, in previous voyages; and if some portion of the debt might have been immediately applicable to the ne cessities of the ship at the time of the voyage to Calcutta, that portion is not distinctly shown, and no reason as yet appears why the freight in their hands, if the transactions were bonâ fide, might not have been applied in discharge of these necessities. As the bottomry bond of Messrs. Lord and 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 Aurora. 1 W. The plaintiffs, in this respect, can claim only as the virtual assignees of Messrs. Lord and Williams, with the assent of the master, and the same defects which infected the original title pass along * with the muniments of that title under the as- [* 108 ] signment. 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, 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 further to involve them in difficulty and distress. There is, therefore, but too much reason to believe, that the plaintiffs 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 appoint a new master for the voyage, * obviously from a total want of [*109] confidence in 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 The Venus. 1 W. 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. APPEAL from the decree of the circuit court for the district of Geor gia. [* 113 ] Charleton, for the appellant and claimant, offered to read affidavits in the nature of further proof. STORY, J. Until the cause is heard, further proof cannot be admitted. MARSHALL, C. 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. Charleton. 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, contrà. Pinkney, in reply. * [*115] The cause was ordered to further proof, on the part of the captors and claimants. 5 W. 127 Preston v. Browder. 1 W. PRESTON V. Browder. 1 W. 115. The Act of Assembly of North Carolina, of November, 1777, establishing offices for receiving entries of claims for lands in the several counties of 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. ERROR to the circuit court for the district of East Tennessee. This was an action of 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 made on the 25th of Feb- [116] ruary, 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, to John Rhea. Also, a deed of conveyance 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 Carolina to the United States, in 1789, and within the now county of Blount, in the district 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, c. 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 in evidence, a grant from the State of Tennessee to himself, made out and authenticated in the manner prescribed by the laws of Tennessee, and dated the 18th of May, 1810, which covers and includes the whole of the land in his possession, and for which this suit was brought. The *plaintiff, by his counsel, [* 117 ] moved the court to charge and instruct the jury, "that an entry was actually made with the entry taker of Washington county, |