The professional cards of our advertising friends are rapidly accumulating.— They will be found subjoined and on the cover. KING & TODD, Attorneys at Law, Waterford, N. Y. J. A. SPENCER, Attorney at Law, Utica, N. Y. A. G. WILLIAMS, Attorney at Law, Utica, N. Y. A. COBURN, Attorney at Law, Utica, N. Y. MATTISON & DOOLITTLE, Attorneys at Law, Utica, N. Y. MANN, EDMONDS & BAGG, Attorneys at Law, Utica, N. Y. S. S. VIELE, Attorney at Law, Seneca Falls, N. Y. J. C. STRONG, Attorney at Law, Geneva, N. Y. C. G. JUDD, Attorney at Law, Penn Yan, N. Y. GIDEON GRANGER, Attorney at Law, Canandaigua, N. Y. J. C. SIBLEY, Attorney at Law, Canandaigua, N. Y. HENRY HUNTER, Attorney at Law, Rochester, N. Y. LORD & KERSHNER, Attorney at Law, Geneseo, N. Y. A. C. FRAZER, Attorney at Law, Cuylerville, Livingston Co. N. Y. WM. M. OLDER, Attorney at Law, Moscow, N. Y. G. N. WILLIAMS, Attorney at Law, Mount Morris, N. Y. GEORGE HASTINGS, Attorney at Law, Mount Morris, N. Y. L. C. PECK, Attorney at Law, Nunda, N. Y. E. FAULKNER, Attorney at Law, Dansville, N. Y. THE AMERICAN LAW JOURNAL. DECEMBER, 1848. IN THE BALTIMORE COUNTY COURT, OCTOBER, 1848. Lambert Gittings v. The General Mutual Insurance 1. In the case of bottomry and hypothecation of a ship and cargo, at an intermediate port of distress, upon a damage and defalcation in the value of the cargo, the adjustment, as regards the basis of value upon which it is to be computed, is to refer to the port of discharge and delivery and not to the port of distress and disbursement. Chief Justice FRICK delivered a long and able opinion from which we make the following extracts: "The facts submitted in this case show that C. Stetsen, being the owner of the schooner Emily Ellicott, chartered her to the plaintiff, for a voyage to Smyrna and back again to Baltimore. At Smyrna she took on board a cargo of figs, for and on account of the plaintiff, which were in due form insured by a policy in the office of the defendants. In the course of the voyage, the vessel became cripVOL. VIII-16 pled, and put into St. Thomas' in distress. The master, under the necessity of the case, executed a bottomry bond up'n vessel and cargo, to cover the advances there made, which it is admitted were properly chargeable to general average. The value of the vessel there is conceded to have been 5000 and the cargo 10,000 dollars. The vessel afterwards arrived safe at the port of Baltimore; but with the cargo damaged, and depreciated in value, at least 75 per cent. Upon these facts two statements of general average have been presented, the one predicated upon the estimate of the vessel and cargo at St. Thomas, the port of distress; the other based upon the value of ship and cargo at Baltimore, the port of discharge. The point presented to the Court upon these two separate adjustments of average, is to determine, whether in the case of bottomry and hypothecation of ship and cargo, at an intermediate port of distress, such adjustment, as regards the basis of value upon which it is to be computed, is to refer to the port of distress and disbursement, or the port of discharge and delivery. The parties in this action are, by consent, the assured and the assurer; upon the admission that the same rights and principles (by the contract of indemnity between them) must govern the case, as if the action were between the ship owner (by whom the bond has been satisfied) and the owner of the cargo; inasmuch as, whatever sum he may legally be compelled to pay in contribution, may by reason of his policy of insurance, be recovered against his Underwriters. With this necessary explanation of the record, the actual parties to the bottomry being considered before the Court, I proceed to examine the point. Simple as is the proposition, yet it is not without embarrassment, from the fact that the learned counsel who have with great ability and research argued it, find no parallel case in the writers on Maritime Law; and it is probably the first time that the question has been presented in this form to any judicial tribunal." "It is undeniably a case of disbursements; but is it such in view of the authorities cited, where each party becomes a debtor at the time the advances are made, in proportion to his interest in the adventure? Is it a case of fixed responsibility upon the parties at the port of distress? Is it, in other words, a loan upon the credit of the owners? If so, the result and the doctrine contended for would necessarily follow; and the liability would attach at once, without reference to the future fate of the voyage for which the expenditure was made. That the master might so have charged his owners, is part of the maritime code. He might upon advances made, have drawn bills upon them, and fixed their responsibility under any and all contingencies. The liability attaches at the time, "as he ought to have paid the money on the spot." The bills for his accommodation and his owners affirm the personal liability at the time they are drawn, and this obligation cannot be affected by any subsequent event. It was competent for the master, as was urged in argument, to have drawn his separate bills upon the owner of the ship, and the owner of the cargo, and (perhaps) in that way have fixed the separate liability of each, which in the present view of the case is not a subject of inquiry. He might even, as has been further urged, have executed his separate bonds, distinguishing between the ship and the cargo, and the advances made for each.— But of the effect of this separation of the interest of the parties at the port of distress, and its influence upon the final adjustment of average, it is not necessary to inquire. The case here presents but the one bond,-blending the interests of both-hypothecating ship and cargo, and in separating the interest of the parties, at the termination of the adventure, I am to inquire upon the case stated for the opinion of the Court, what is the legal effect and operation of this bond? Referred back to this enquiry for defect of such analogies in the Law of Insurance as, would bind and control the decision of it, I am to ascertain the true design of the Contract of Bottomry. In the first place it differs materially from, and has nothing in common with, a simple loan of money. In a loan, the money is at the risk of the borrower, and must be paid at all events; but in bottomry the money is at the risk of the lender during the voyage. Again, where a loan upon the credit of the owner can be had, it is never resorted to; but only in cases like the present, where all other means are ineffectual. To prevent the voyage from being broken up and an immediate sacrifice of the property, the parties renew the adventure, upon a joint mortgage of all they have at risk, of ship and cargo. The stipulation with the lender is, that if nothing is saved finally, nothing is due; and the lender shall lose his money. But if the ship arrives, he shall receive back his principal, and also the marine interest agreed upon; and upon the arrival, not only the ship, but then the person of the borrower is liable for principal and interest. The personal responsibility here only springs up upon the contingency looked to in the bond. The security is given, but the payment is made to depend upon the event of the voyage. It is nothing to say that a benefit is consummated to the parties at the time of the loan. Whether or not it was a a benefit, was to depend ultimately upon the result of the voyage, for which the lender upon the bottomry became the insurer. It is, in this view, like to a condition precedent at common law, where there can be no cause of action until the condition was performed; and is excluded from that class of cases we have discussed where there is no condition precedent; but the money is due whether ship is lost or not. There it is rightfully said: "The money |