1836.

DARLING.

tion as to the nature and quality of the stores not corresponding with those agreed to be supplied; and it HEATHORN was also alleged that the quantity shipped was short of that charged for. The ship arrived in the port of London on 23d December 1833; and as Heathorn had refused to pay the bond, proceedings were instituted in the High Court of Admiralty to enforce payment thereof.

The circumstances and particulars of the above transactions were duly set forth in the Act or Petition, and subsequent pleading in the court below, and were supported on either side by affidavits.

In support of the validity of the bond, the affidavit of Solomon stated, that at an interview between him and Marshall at his, Solomon's, house, the day after the arrival of the vessel in the port of St. Helena, having repeated an offer of his services made on the day previous by Moss his clerk, he stated: "That the late commander, Captain Groves, had been a very old acquaintance and good friend of his, and that he, Solomon, had transacted Groves's business, when he called at that island in command of the ship Ferguson, in 1836; that Marshall replied, that a Mr. Gideon had come on board the evening before (after Solomon's clerk had left the vessel with his, Marshall's, order for refreshments), and having represented himself to be a friend of Heathorn, had offered his services; that a Mr. Carroll had also been on board the evening before for the purpose of tendering his services, and had represented that he had likewise a recommendation in his favour from or on the part of Heathorn; but that he, Marshall, not being aware of any instructions from the owners to apply to any particular individual as their accredited agent, but on the contrary, knowing and being

V.

DARLING.

1836. well aware that the late Captain Groves had intended HEATHORN to address himself for the business of the said ship to him, Solomon, had he lived until the arrival at St. Helena of the vessel, he, Marshall, preferred following the same plan which he knew the late commander would have adopted, and would therefore take from him, Solomon, what he might require for the vessel; that thereupon Marshall ordered from him, Solomon, such stores and provisions as the vessel stood absolutely in need of, to complete her voyage, and which accordingly were sent on board at various times during the stay of the vessel in the roads of St. Helena." His affidavit also further stated: "That the supplies and provisions furnished to, and the cash advanced for the ship having amounted to a considerable sum, viz., 5007. and upwards, he informed Marshall that under the peculiar circumstances of the case, that was, of his, Marshall's, having only succeeded to the command during the voyage, in consequence of the original commander's death, and of the considerable quantity of stores and provisions which he had stood in need of for the use of the crew and passengers on board, and of the many disbursements it had been necessary to make on account of the said ship, he, Solomon, would be under the necessity of taking a bottomry bond, unless Marshall should be able to raise sufficient funds to defray the amount due, by drawing a bill upon the owners of the said vessel." The affidavit then stated: "That at the time of the arrival of the ship Eliza at St. Helena, the said Lewis Gideon was not known to Solomon, or to any person else, as far as he, Solomon, had been able to ascertain, to be the authorized and accredited agent of Heathorn."

Moss, the clerk of Solomon, confirmed this statement

1836.

of the interview with Marshall, the day after the HEATHORN arrival of the ship.

The respondent, Andrew Darling, a resident merchant of St. Helena, also made an affidavit, stating "That though he had been in the habit of cashing ship bills for several years, in the instance of the ship Eliza, from the death of Captain Groves, whom he understood to be part owner of the ship, and from the ship being in a leaky state, he would not have given cash for a bill drawn for supplies, &c., without the further security of a bottomry bond being handed over to him." Several other affidavits were put in in support of the transaction, confirming the statement of Solomon and Darling.

Against the validity of the bond, Marshall made an affidavit, in which after stating the circumstances of Groves the master'; death, and the ship's arrival on the 4th of October at St. Helena, he proceeded to detail the circumstances of procuring the supplies in the following manner: That the said ship being in want of provisions and stres, he, Marshall, had an interview with Gideon, the agent of Heathorn, the owner of the ship, in regard to upplying her, with the requisite stores for the furtler prosecution of her voyage to England, who stated his readiness to furnish the same; that he, Marshall, was also applied to by Solomon to furnish the requisite provisions and stores; and Solomon sent on board he ship one tierce of Irish beef, and another of Irish pork, as samples; that conceiving he had a right, & master of the ship, to make his election, and that h was not compelled to employ the agent of his ower, he agreed with Solomon to furnish such provisios and stores as were requisite;

v.

DARLING.

1836.

HEATHORN

0.

DARLING.

and he also agreed to give Solomon a bottomry bond on the ship as security for the repayment by the owner for the stores and provisions."

Lewis Gideon, the agent of the appellant, swore, "That the ship being in want of provisions and stores, as the agent of Heathorn, he immediately (on the ship's arrival) personally applied to Marshall, the master, for an account of what was wanted, at the same time informing him that he was ready and willing to supply the ship with every requisite, and to draw a bill as usual for payment ɔn Heathorn; that notwithstanding the premises, Marshall declined to permit him to supply the requisite stores and provisions, stating that as master he haċ a right to employ what agent he pleased;" the affidavit then stated the dealing with Solomon, and "That it was well known at such time to Solomon that he, Gideon, was the accredited agent of the owner at St. Helena, he having himself assured Solomon that if he insisted on a bottomry bond, the payment thereof would be resisted by the owner, or words to that efect." Heathorn the appellant, confirmed Gideon's statenent of his being his accredited agent at St. Helena.

On the 30th January 1835, the cause was heard in the Court below, when the Judge (Sir John Nicholl) pronounced for the validity of the bottomry bond, and condemned the appellant b answer the action against the ship, in the amount ofthe bond and in costs.

From this decision Joseph idwell Heathorn appealed. The case was argued on the 30th May, and re-argued at the desire of the Court by the senior Counsel on either side, on 2d Jiy 1836.*

Present on the second argument: LordLyndhurst, Mr. Baron Parke, Mr. Justice Bosanquet, the Chief Judge o the Court of Bankruptcy, Sir John Nicholl, and Sir Herbert Jenner.

Dr. Adams, and Bere, for the Appellant.

1836.

HEATHORN

v.

The allegations in the act or petition in this case are not supported by the evidence; the respondents DARLING. make out no case of necessity for hypothecating the ship. Such necessity must absolutely exist; it is the principle upon which alone a bottomry bond can be supported. In the case of the Rhadamanthe (a), Lord Stowell says, "Such bonds are considered valid upon the ground of necessity only, and it is upon the same principle of necessity, that a later bond is entitled to priority of payment over a former one." In the case of the Nelson (b), the same learned Judge lays down the principle of their allowances more fully. "It is certainly the established principle of this species of bonds, that they shall have been taken where the owner was known to have no credit; no resources for obtaining necessary supplies. It is that state of unprovided necessity that alone supports these bonds; the absence of that necessity is their undoing. If the master takes up money from a person who knows that he has a general credit in the place, or at least an empowered consignee or agent, willing to supply his wants, the giving a bottomry bond is a void transaction, not affecting the property of the owner, only fixing loss and shame on the fraudulent lender; but where honourably transacted, under an honest ignorance of the fact, an ignorance that could not be removed by any reasonable inquiry, it is the disposition of this Court to uphold such bonds as necessary for the support of commerce in its extremities of distress, and as such recognized in the maritime codes of all commercial ages and nations." The first question is, did not Solomon know that Gideon was the accredited (a) 1 Dodson, 203, 204. (b) 1 Hagg. Adm. Rep. 175.