of any freighter, the owner is liable to pay such freighter-and on that ground it is customary for freighters to furnish masters of the ships they take to freight with letters of credit for whatever money they may happen to want, for the necessary service of the ship."

On the other side it was contended, "That it would be of most dangerous consequence for the master of a ship to charge the person or estate of his owner with what money he should take up on pretence of providing for the ship, without an express power or authority for that purpose; for that the law of merchants had never carried it further than to invest the master with a power of mortgaging or charging the ship or cargo with such money. That in the present case the money could not be laid out by the appellant, or his factors, upon the credit of Sir Humphrey Jervis, not only because he was a total stranger to them, but principally because he had for two years before failed in his circumstances, and lost his credit; nor was it even pretended that Sir Humphrey ever gave any authority to the master to take up money otherwise than on bottomry. That if Sir Humphrey's person or estate was in all events liable to make good this 7897., besides the 2007. advanced on the bottomry bond, and which, in case the ship had returned safe to Bristol, he would have been answerable for, he must of necessity have been a very great loser, as the ship cost at first but 7007., and her freight in that event would not have brought above 6007.; and therefore, if Sir Humphrey himself had been at Jamaica, he never would have consented to take up money for preserving that which would have been so much to his loss. And that the appellant's interest in the ship, by having 2001. on bottomry, at a large interest, to be paid on her return, was much greater than Sir Humphrey's; and therefore, whatever money was laid out in Jamaica ought to be considered as laid out on the account of the appellant, but yet to be discounted out of the ship and freight, so far as it would extend, on its return." The House of Lords thought the owner personally responsible, if the allegations of Cary, as to the necessity of the expenditure, were true; and directed a trial by jury in the Court of Common Pleas in Ireland, to ascertain whether any and what sums of money were necessarily laid out by, or by the order of Cary, for the payment of seamen's wages, provisions, or otherwise, for the necessary repairs and use of the ship during the voyage, and decreed those sums to be paid to Cary, and directed the Lord Chancellor of Ireland to order the necessary steps for the trial of the cause. The cause (x) was accordingly tried at the bar of the Court of Common Pleas in Ireland, and the jury declared by their verdict, that nothing had been necessarily expended for these purposes by, or by the order of Cary. Cary applied to the Lord Chancellor, who ordered a second trial, and the cause was again tried at the bar of the Court of Common Pleas in Ireland, before another jury, who gave the same verdict, and the

(x) The subsequent proceedings are not mentioned by Brown. This account of them is taken from the printed cases delivered to the House of Lords, and the

Journals of the House, 1st of June, 1717. The account of the evidence given at the trials contains nothing of general interest,

Lord Chancellor thereupon dismissed Cary's suit with costs from the time of the judgment of the House of Lords. Upon this, Cary again appealed to the House of Lords; but, no person appearing before the House to support his appeal at the day appointed, the House dismissed it with costs.

This case, while it establishes the principle of the personal responsibility of the owners, shows also that the creditor is required to prove the actual existence of the necessity of those things which give rise to his demand. The authority of the master is to provide necessaries; if, therefore, a person trusts him for a thing not necessary, he trusts him for that which it is not within the scope of his authority to provide, and consequently has no right to call upon his principal for payment. In the words of Lord Ellenborough, "The money supplied must not be understood of an indefinite supply of cash, which the master may dissipate, but only such as is warranted by the exigency of the case, as for the payment of duties or other necessary purposes" (y). And it must be advanced to the master expressly for the use of the ship; otherwise, although expended for that purpose, the owner will not be responsible for it to the lender (2).

From what has been said, it follows, that if the master expend money of his own for these purposes, he has a right to call upon the owners to repay him (a).

In an action against the owner for money advanced in England to the master, the following circumstances appeared on the trial. The ship, after an absence of four years and a half, during which she had been engaged in his Majesty's transport service, was in the port of Portsmouth, upon her release from quarantine. Having received orders from the transport board to proceed to Deptford, the master borrowed the money in question to pay seamen's wages, Portsmouth being a port of discharge, and to pay tradesmen's bills for articles supplied for the use of the ship there. On the trial the plaintiff was nonsuited, but finally the Court of Exchequer set aside the nonsuit, and ordered a verdict to be entered for the plaintiff for such sum as should, on a reference, be found due for the seamen's wages (b).

This case, it will be observed, was decided upon the same principles as those we have just considered. The money borrowed by the master to pay the seamen's wages was, in the strictest sense, necessary to the prosecution of the voyage. Without it, the seamen might have refused to assist in the further navigation of the ship, and the master therefore was in a situation which enabled him to pledge the owner's credit. So also it may in some cases be necessary to pay harbour dues or pilotage, buy provisions, and the like, and to pay for them in ready money; and if that be the case, the master's general authority

(y) Rocher v. Busher, 1 Starkie, 27. See also Palmer and others v. Gooch, 2 Starkie, 428; Boyce v. Attorney-General,

50.

(2) Thacker v. Moates, 1 M. & Rob. 79. (a) Roccus, Not. 34, 35.

(b) Robinson v. Lyall, 7 Price, 592.

See, as to the incidental authority of masters of ships, as resulting from their official capacity, the "Commentaries on the Law of Agency, as a breach of commercial and maritime jurisprudence," by Judge Story, pp. 91-97.

will enable him to procure money by loan, and to bind his owner by a contract for that purpose (c). But where the master had pledged his owner's credit for the maintenance of, and medicine for seamen disabled by accident, and whom he left at an inn, having engaged other seamen to perform their duty, it was held that the owners were not liable (d).

In the case of Arthur v. Barton (e), the master of a coasting vessel being at Cardiff, in Glamorganshire, borrowed money for the necessary use of the ship. His owners resided in North Wales; and the question was, whether they were liable on the master's contract for the money advanced to him. The case was tried before Mr. Justice Patteson, and that learned judge directed the jury, "that to justify the master in borrowing, it was not necessary that the occasion should arise in a foreign country, but that the case must be one of pressing necessity, when the master and owner cannot communicate without great prejudice and delay," leaving to them to say whether, in the circumstances of that case, such pressing necessity and such difficulty of communication had occurred.

The Court of Exchequer confirmed this direction, and thought the question one of fact, which the learned judge had properly left to the jury.

"Under the general authority," said Lord Abinger, delivering the judgment of the court, "which the master of a ship has, he may make contracts, and do all things necessary for the due and proper prosecution of the voyage in which the ship is engaged. But this authority does not usually extend to cases where the owner can himself personally interfere, as in the home port, or in a port in which he has beforehand appointed an agent, who can personally interfere to do the things required. Therefore, if the owner or his personal agent be at the port, or so near to it as to be reasonably expected to interfere personally, the master cannot, unless specially authorized, or unless there be some usual custom of trade warranting it, pledge the owner's credit at all, but must leave it to him or his agent to do what is necessary. But if the vessel be in a foreign port, where the owner has no agent, or if in an English port, but at a distance from the owner's residence, and provisions or other things require to be provided promptly, then the occasion authorizes the master to pledge the credit of his owner."

Of the doctrine thus laid down by Mr. Justice Patteson, the Court of Queen's Bench, in two later cases (f), expressed its approval.

Stronger circumstances may be required in some of these cases than in others to establish the fact of the necessity upon which the liability of the owner must depend, but they are all referable to one general principle.

(c) Arthur v. Barton, 6 M. & W. 188; Edwards v. Havill, 14 C. B. 107. (d) Organ v. Brodie, 10 Ex. 449.

cases as to the meaning of the word necessaries in the 3 & 4 Vict. c. 66, s. 6.

(f) Johns v. Simons, 2 Adol. & El. (N.

(e) 6 M. & W. 188; and see post, the S.) 424. Stonehouse v. Gent, ibid. 431.

"The only distinction," said Dr. Lushington (in a case against a foreign ship, proceeded against under the 3 & 4 Vict. c. 65, for the price of an anchor and cable supplied to it in England) (g), "between the advance of necessaries and of moneys is, that though in both the onus probandi is the same, there is, wisely and properly, a difference in the extent of proof required. I cannot find any case in our own law which does not require that the proof that the articles furnished were necessary should come from the plaintiff, to the extent of showing that they were what a reasonable and prudent owner would have ordered. The only case I can find, in which to a certain extent a contrary doctrine has been laid down, is in the Admiralty Court, in Scotland, during the time that jurisdiction existed. It is the case of Cragie v. Ogilvey and Izzett, in 1807, in which a cable had been furnished to a Norwegian vessel by order of the master, and the defence was, that no cable was necessary. The judge recognised a distinction between the furnishing of stores and the loan of money, holding it requisite, in the latter case only, to look to the necessity; he also recognised a distinction between articles of ordinary use and necessity to the vessel's safety and articles manifestly superfluous; and he repelled the defences, reserving all questions between the owner and shipmaster. This case would make a distinction between money and other articles, but it is wholly unsupported by any authority in England. I think, in the case of an anchor and cable, less evidence might suffice to prove the necessity in the legal sense of the term, than in respect to other articles; but still there must be some evidence, and I think that the doctrine which casts the onus probandi on the tradesman or material man who provided the articles is founded on great and important principles, and that the rule is wisely framed to prevent great abuses. To charge one man for the acts and dealings of another is primâ facie contrary to natural law; but when it appeared that such other person was authorized to a given extent, when the relation of principal and agent is established, then it becomes reasonable to fix the principal with responsibility, but a responsibility properly guarded and restrained, by requiring the creditor to use reasonable diligence to ascertain that the want of the article is such that the owner himself would have sanctioned the purchase."

The same learned judge, in another case, was clearly of opinion that the master of a vessel belonging to Newcastle could not bind his owners for money borrowed by him at Cowes to repair his ship, there being no proof of pressing necessity or difficulty of communication (h). He has authority to borrow money only in cases where ready money is necessary-that is to say, where payments must be made in the course of the voyage, for which ready money is required; and not even then, if

in the case of Williamson v. Page, 1 Car. & K. 581; and Mackintosh v. Mitcheson, 4 Exch. 175.

(g) The Alexander, 1 Wm. Rob. 361, and the Sophie, p. 369. The judgment of Dr. Lushington contains an elaborate review of all the cases upon this subject. And see the observations of Cresswell, J.,

(h) The Lochiel, 2 Wm. Rob. Adm. Rep. 45.

the owner of the vessel is living so near as to be conveniently communicated with; and he cannot borrow money after the work has been done for the purpose of paying the debt due for it (i).

But although it be obligatory on the tradesman or material man, who would seek to make the owner of a ship liable for repairs done, or supplies furnished on the order of the master, to give some proof of the existence at the time of that legal necessity which has been above defined, it must not be understood that he is required to decide on the expediency, under the circumstances, of ordering what he believes to be necessary to enable the ship to complete her voyage. Such expediency may depend on the value of the cargo, and on many complicated considerations, of which it is the master's duty to judge, and of which the tradesman can seldom have the means of forming an opinion (k).

If within the possible and probable knowledge of the person making the advances at a foreign port, the owner of a vessel has a recognized agent there, the bottomry bond given there for such advances, will be held by the Court of Admiralty to be void (7).

To render valid a bottomry bond where communication is practicable between the port of distress and the owner, it is not sufficient that the owner should be made aware of the disaster which has happened to the ship; he should also be informed of the intention to hypothecate (m). In considering an objection to a bottomry bond on ship and cargo, upon the ground that the master had not communicated with the owners of the cargo before giving the bond, the court will consider the probable effect of the delay arising from such communication, and not only whether it was reasonable and prudent for the master or the lender of the money to have any such communication with the owner or consignee of the cargo before entering into the bond. Where money has been advanced upon bottomry of a British ship and her cargo, the owner of the cargo hypothecated has a right of action for all costs and charges against the owner of the ship (n). If it be intended to rely on such a ground to invalidate a bond, the obligation ought to be specially pleaded.

3. Of Charges on the Ship in Specie. Repairs done in England not privileged as in the Civil and Maritime Law. Lien of Shipwright.

Every man who had repaired or fitted out a ship, or lent money to be employed in those services, had by the law of Rome (0), and still

(i) Beldon v. Campbell, 6 Exch. 886. Snowdon v. Jackson, 15 L. T. 92. N. R. Gosfabrick, Swab. Adm. R. 344. Perla, ibid. 353. West Friesland, ibid. 454.

(k) The Vibilia, 1 Wm. Rob. Rep. 1.
(1) The Faithful, 31 L. J. (N. S.) Ad. 81.
(m) The Oliver, 31. L. J. (N. S.) Adm.

137.

(n) Ibid.

truendam vel instruendam, credidit, vel etiam emendam, privilegium habet." And id. 1, 34: "Quod quis navis fabricandæ vel emendæ vel armandæ, vel instruendæ causâ, vel quoquo modo, crediderit, vel ob navem venditam petat, habet privilegium post fiscum." See also Dig. 20, 4, 5, and 6; Novell, 97, c. 3; Domat's Civil Law, book 3, tit. 1, sect. 5; and Vinnius in

(0) Dig. 42, 5, 26: "Qui in navem ex- Peckium, pp. 99, 233.