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1836.

0. DARLING.

agent of Heathorn ? The expression in his affidavit HEATHORN is, that at the time of the arrival of the ship at St.

Helena, Gideon was not known to him to be such accredited agent; the expression runs through the affidavits of the respondent's witnesses. Solomon's interview with Marshall was not till the day after the arrival of the ship; that is the period from whence the absence of such knowledge should be proved; but in order to support the bond they must go further, and show that the owner had no credit. Marshall's affidavit negatives such an assumption; it is nowhere contradicted. No one swears that Gideon was not fully prepared to advance on the personal credit of Marshall. Moss says only that he did not know Gideon was the accredited agent of Heathorn. Gideon himself says he applied personally, and offered to supply the necessary stores. It would be impossible to support this as a bottomry transaction, without sending to inquire whether the stores were advanced on the credit of the owner. That, however, is unnecessary, for it appears, on their own showing, to have been an advance on personal credit. That is fatal to such a bond. The Alexandler (a), The Sydney Cove (V), in The Augusta (c), Lord Stowell says,

Hypothecation bonds are founded on the security of the ship and freight; and according to the law of this country, are resorted to only where there is a failure of personal security, in order to enable the master to supply himself, in a foreign port, with

essaries, which he would otherwise be unable to procure: from that necessity they spring, and on the ground of that necessity alone are they supported.”

neces

(a) 1 Dorlson, 278.

(1) 2 Dodson, 1.

(c) 1 Dodson, 283. 286-7.

1836.

HEATHORN

V.

DARLING.

The supplies were not such as the ship stood in absolute need of, and therefore the agent was not justified in taking a bottomry bond. All the authorities concur that the supplies must be necessary supplies. It appears by the affidavit of Darling, that he took the bond, because the ship was in a leaky state, yet knowing the ship to be in such a state he gives the full value for the bond; is that a credible state of things?

The King's Advocate (Sir John Dodson) and

Dr. Curteis, for the Respondent. It is clear that the vessel was in a state of necessity when she entered the port of St. Helena. It is nowhere stated that Gideon was the accredited agent of the ship; it rests upon the absence of a contrary statement; how then could Marshall be aware of such fact? No supplies could be obtained but on a bottomry bond, the necessity of the ship justified the resort to such a security. The stores supplied were such as the vessel had immediate need of; they were for the most part sea stores. In The Duke of Bedford(a), the Judge of the Admiralty Court (Sir Christopher Robinson), says, “With respect to sea stores, I see no reason for distinguishing them from any other supplies that may be necessary for the service of the ship: pour les depens de la nef, s'il y a besoin de victuailler,"_" in causâ necessitatis pro servandâ nave et bonis,” according to the general definition given of these bonds by writers on maritime law. Solomon's ignorance of Gideon being the accredited agent, if he were such, is an honest ignorance, and not disproved by any evidence on the other side. As to the stores being sup

(a) 2 Hagg. Adm. Repts. 301.

1836.

plied on a personal credit, there is no pretence for HEATHORN such an assumption. A bottomry bond may be valid DARLING. though a bill of exchange were given at the same

time by way of collateral security (a). The resistance of the bond is an unrighteous act; the Court below held it valid, and condemned the appellant in costs.

Lord LYNDHURST: We do not think this Bond can be upheld. The question is, whether Solomon (for the Respondent has no better right than he had) used due diligence to ascertain if Marshall, the master, could procure the necessary supplies without resorting to a bottomry bond. It appears to us that he was bound in this case to inquire if any person was willing to supply the goods, upon personal credit; he had no right to fix the owner with a Bottomry Bond until he had made such inquiries, and had good reason to believe its absolute, and therefore its legal necessity. If he knew that Marshall might obtain the necessary supplies on the personal credit of the owner, there is an end to

and having the means of knowing that fact, we think he is bound to show that he exercised a reasonable diligence to ascertain it: we do not think from the evidence in this case that he did use such diligence, and we are therefore of opinion that the judgment below must be reversed.

the case;

(a) 1 Dodson, 466.

ON APPEAL FROM THE COURT OF

CHANCERY OF JAMAICA.

STEPHEN DENTON and DUNCAN Ro-
BERTSON, Esqrs.

and

Appellants,

JAMES LEWIS Davy, John Davy, and

John COLEY, Executors of the last Respondents.*
Will of James Davy, deceased -

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England, guardians,

On the 10th January 1831, the appellants, Stephen

15 June

1836. Denton and Charles Gatfield, since deceased, filed their bill in the Court of Chancery of Jamaica against The commisthe above-named respondents. The complainants de- per cent.

given by the scribed themselves as Stephen Denton, late of the Jamaica Act

24 Geo. 2, c. 19 parish of Manchester, in the island of Jamaica, but to agents,

trustees, then of England, and Charles Gatfield, of England, Esqrs., the surviving trustees, and two of the executors executors,

&c. for the under the last will and testament of Henry Palmer, and are sposat late of the said island of Jamaica, Esq., deceased, and of the rents as suing by the above-named appellant, Duncan Ro- of an estate, bertson, of the said island, their attorney in that nature of a

remunerabehalf.

tion for the

trouble and Present: The Vice-Chancellor, Mr. Baron Parke, Mr. Justice responsi.

bility of conBosanquet, and the Chief Judge of the Court of Bankruptcy.

ducting the

business of a merchant on the island, is payable only to persons actually resident on the island, and capable and willing to act in the trusts of the estate ; and the commission of 51. per cent. given by the same Act for receiving and remitting monies can only be claimed where the receipts or payments are actually made on the island.

Semble. Where a party is made a co-plaintiff, having no interest in one of the objects sought by his co-plaintiff, and the bill is sustainable only in respect of that object, it must be dismissed.

1836.

DENTON

. Davy.

The bill stated that Henry Palmer' was, at the time of making and publishing his last will and testament, and at the time of his death, seised and possessed of very considerable real estate and slaves, and was also possessed of considerable personal estate and effects in Jamaica; and being so seised and possessed, made and published his last will and testament in writing, executed and attested as by law required, for rendering valid and effectual devises of real estate and slaves, bearing date the 6th day of August 1814; and thereby he willed and directed that all his just debts, funeral expences, and the expences attending the execution of that his will, should be fully paid and satisfied by his executors thereinafter named, as soon as possible after his decease, to the payment whereof he thereby subjected, charged and made liable all his estate: and after full payment and satisfaction thereof, he gave and bequeathed certain annuities and legacies therein particularly specified, to the payment of all which legacies, annuities, and bequests he thereby subjected, charged and made liable all his estate, both real and personal: and as to all the rest, residue and remainder of his estate, both real and personal, or of what nature or kind soever the same then was or thereafter should or might be, or wheresoever situate at the time of his decease, in possession, reversion, remainder or expectancy, or of which he might be possessed and seised and entitled unto, he gave, devised and bequeathed the same, and every part and parcel thereof, unto his friends Charles Gatfield the elder, of Newgate-street, in the city of London, in the kingdom of Great Britain, Esquire, and Stephen Denton and James Davy, both of the parish of St. Elizabeth, in the county and island aforesaid, Esquires

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