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I have no doubt, the lender had under the Imperial Act, 30 & 31 Vic., c. 114, sec. 31, relating to the Court of Admiralty ELYSIA A. in Ireland.

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I consider it proved by the evidence that the advances and supplies furnished to the master in this case were necessaries for the immediate use of the vessel, and to enable her to leave Queenstown, and that the master was unable to obtain any money on his own credit, or the credit of her owner, and had no means of raising the money except by bottomry, the allegation to the contrary in the responsive allegations ou behalf of the owner are not sustained, or attempted to be sustained, by any evidence whatever.

The bond is also impeached on the ground that there was not sufficient communication with the owner or mortgagees of the vessel prior to the execution of the bond. The contrary of this is alleged by the promovent, in his pleading, when he sets forth that the master did apply as well to the owner of the vessel as to George Bell, acting for her as agent in Ireland, informing him of the necessity that existed for the money, and that the said George Bell also informed the owner of such necessity. Now what is the purport of the evidence of the bondholders to prove such communication. The allegation, in his reply, and the defendant's answer, when he says: "That after endeavoring to sell the vessel, and no purchaser offering, the owner, on 29th August, sent to George Bell, of Dublin, who was acting as the owner's agent in Ireland, this cablegram: Elysia, return, effect insurance on hull, £250;' to which George Bell replied by cablegram, "Vessel detained on account of £50, cable Bankers."" The material allegation being uncontradicted by any plea or evidence, I must rule as admitted to be true. Here there is an order for the owner in New Brunswick to his agent in Ireland for the return of the vessel to New Brunswick, and a direct reply that the vessel was in financial trouble, and detained for an account of £50. To which no reply was received.

That George Bell wrote the master that he had no funds, and that he declined to make any advances on account of the owner.

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There is the further allegation that before applying for the money on bottomry, the master did apply as well to the owner as to George Bell, informing them of the necessity ELYSIA A. which existed for the money, and that being totally unable to raise any, the master and George Bell did apply to the owner for the necessary funds for the vessel. To this most important and material allegation there is no contradiction or explanation whatever offered on behalf of the owner.

The evidence of William Scott on this point is, that upon application to George Bell, he wrote in reply that he had no funds, and left the master to raise funds in the best way he could, and that the master sent a cablegram to the owner requesting funds to be remitted; that no reply being received from the owner, George Bell communicated to the master that bottomry was the only course he should pursue to enable him to carry out the owner's instructions to proceed to Harvey.

The deposition of the master, William E. Simpson, which should have set forth all the facts bearing upon the case within his knowledge in a clear and candid manner, is to my mind neither clear nor satisfactory. He makes no allusion to the cablegrams alleged to have passed between her owner and George Bell, and leaves it to be inferred that the bringing of the vessel out of the port of Queenstown was his own act alone, uninfluenced by any instructions from her owner or Mr. Bell. He says: "As there was no immediate prospect of selling the vessel, he concluded to bring the said vessel out of the said port of Queenstown, and bring her out to the Province of New Brunswick, and for the purpose of paying the advance wages to a crew, and of paying my own wages and the outward disbursements and bills of the said vessel, I obtained the sum of £99 19s. 2d. sterling on bottomry of the vessel."

He further states that he was not directed by the owner nor by the mortgagees to take the vessel out of the port of Queenstown, again ignoring the uncontradicted allegation that her owner had sent such instructions to his agent, George Bell; neither does he set up any denial of his knowledge of these cablegrams.

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It may be literally true that he was not personally directed by her owner to bring out the vessel, whilst I believe it to ELYSIA A. be really true that he brought her out in consequence of the order contained in her owner's cablegram to Mr. Bell. On the ground of want of communication to her owner, he is equally guarded and reserved in his language. He says: "That he did not communicate with her owner or the mortgagees relative to borrowing money on bottomry of the vessel, and that he had no directions from them to bottomry the vessel." This does not meet the allegation in the pleading of the bondholder, when he says that the master, before applying for moneys from the bondholder, applied to her owner informing him of the necessity which existed, and of the money required.

The statement in the master's affidavit that he did not communicate with her owner relative to borrowing money on bottomry may be itself true, whilst it may be also true as a fact that he communicated to her owner the necessity the vessel was in for funds to enable her to leave Queenstown. Again, we have no plea or rejoinder denying the allegation in the bondholder's reply to the answer. That before applying for the moneys the master did apply to the owner informing him of the necessity the vessel was in; if this averment was untrue, the evidence of the owner himself would have been most important to show the contrary; the absence of any evidence from the then owner, whose testimony, if deemed important, could have been obtained through the process of the Court, leads to the inference that, if produced, it would not tend to the benefit of the defence.

With the evidence now before me, and in the absence of any thing to the contrary from the then owner, I conclude that both the master and Mr. Bell did communicate to the owner full information of the wants of the vessel to enable them to obey his orders for a return of the vessel to New Brunswick, and that his silence authorized the master to take such measures as were expedient, and such as a prudent master would take who could not get instructions from her owners. A direct application for authority to raise money on bottomry

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need not be made. It was held in the case of the Bonaparte (1) that a letter from the British Consul in a foreign port, written on behalf of the master, informing the consignees ELYSIA A. in England of the damage sustained by the vessel, but making no application for money, nor referring to the necessity for repairs, was sufficient notice for the purpose of raising money on bottomry.

This was, therefore, a bond given for necessary disbursements in a foreign port, where the owner had no present credit; where the master was without funds, and without the means of raising funds, except upon the credit of the vessel; both the agent of the owner and the master were aware how necessary it was that money should be raised to enable the vessel to leave Queenstown and return home, where she had been ordered by the owner. The owner had been communicated with and no reply had been given by him. Mr. Bell had advised the master to raise money as best he could, and the master acting under these circumstances, advertises for the money, which is advanced by Mr. Meloro, as I think, bona fide, and is legitimately, in my opinion, used by the captain in discharging claims thus existing against the vessel and to enable her to go to sea.

When a case of necessity is established, and the want of personal credit is beyond question, and no imposition has been practised upon the master, it is as a general rule considered important for the security and promotion of commercial interests that bonds of this description should be supported. The presumption in such cases is that the master, acting as the agent of her owner, would perform his duty honestly and would not unnecessarily subject the property of his principal to heavy burdens, and notwithstanding the character of the evidence now given by the master, I am of opinion that at the time he executed the bond he adopted that course which he believed to be for the benefit of all parties concerned in the vessel.

As to the ground of objection raised that the master did not apply, or attempt to apply, to the mortgagees of the vessel prior to the execution of this bond, there is no aver

(1) 17 Jur., 285 s. c., 8 Moo. P. C. 473.

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ment or evidence that the mortgagees named were mortgagees in possession, or that the voyage was undertaken for ELYSIA A. their benefit, or that the master or ship's agent, George Bell, or the bondholders, had any knowledge of the existence of the mortgage. Therefore I must hold that the ground of objection must fail.

Under all the circumstances of this case, I pronounce for the validity of the bond, and, of course, with costs.