templation of a particular voyage, or for a particular and fixed period of time; and it is stipulated that if the ship should be lost in the course of the voyage or during that time, by any of the perils enumerated in the contract, the lender shall lose his money; but if the ship should arrive in safety, then he shall receive back his principal, and also the interest agreed upon, which is generally called marine interest, however this may exceed the usual interest for the use of the money.123 1247. There is much resemblance between bottomry and insurance. In one, the lender takes the risks, and in the other, the insurer. In one, the profit, in the other, the premium, are the considerations for the maritime risks, which are supported upon the same principle and may be modified in the same manner. The amount of these profits and of this premium is lower or higher, according to the duration and the nature of the risks and of the agreement. Neither have any effect, unless the objects which are bound for the loan, or which have been insured, have been exposed to maritime risks, which the same circumstances and the same events cause to begin and end. If these contracts resemble each other, there are also many differences between them. In bottomry, the lender actually furnishes a certain sum of money; in insurance, the insurer furnishes nothing; on the contrary, he receives a premium, which is frequently paid to him at the time of the agreement, but which when it is not paid in cash is a claim which he may assign, or for which he may procure a guaranty. In bottomry, there must be things which may be given in pledge; in insurance, all that is required is the possibility of a loss. Bottomry differs from a simple loan. In a loan, the money is at the risk of the borrower, and must be paid at all events; in bottomry, the money is at the risk of the lender during the voyage. Upon a loan only lawful interest can be charged; upon bottomry any interest may be legally reserved which the parties agree upon. 1248. The contract of bottomry is usually in form a bond, called a bottomry bond, conditional for the repayment of the money loaned, with the interest agreed on, if the ship arrives in safety at the end of the voyage or period of time contemplated by the contract. It should specify the sum loaned, and at what interest or maritime profit, the subject upon which the loan is made, the name of the vessel and of the captain, and of the lender and borrower, the description of the voyage, and the risks assumed by the lender. 1249. Though usually a sum of money is the thing loaned, yet other things may be loaned; but in all cases the borrower must acquire a title to them, for otherwise the contract would change its nature; as, for example, if only the use of a thing were loaned, for then the borrower would never have owned the property. In the contract of bottomry the ship, her tackle and apparel, are the objects on which the loan is made. When the loan is made on other property exposed to maritime risk, the contract is called respondentia. 1250. By risk is understood the danger to which a thing is exposed. Maritime risks are perils which are incident to a sea-voyage, 124 or those fortuitous events which may happen in the course of the voyage. 125 It is essential that the lender should run the risks of the things on which the loan is made; if a contract were made by which he should be relieved from them, it would be no longer botto:nry, but a simple loan.126 123 The Draco, 2 Sumn. C. C. 157. 124 1 Marshall, Ins. 215. 125 Pothier, Contr. d'Assur. n. 49; Pardessus, Dr. Com. n. 770. The risks the lender runs are generally the same as those for which the insurer is liable. But the parties may extend them beyond these limits. In case of wreck, the property saved continues liable to the bottomry, but if the loss is caused by the perils assumed by the lender, the borrower remains liable only to the amount of the property saved. It is usual to provide, in case of damage by the enumerated perils, that the lender shall bear his share of loss. 1251. There can be no contract of bottomry if the borrower is not bound to pay to the lender, besides the thing loaned, maritime profits for the risks he has taken upon himself. If the contract did not contain such a clause, it would be a kind of gift in case of a sinister event, and a simple loan in case of a successful result. This profit is usually fixed in a certain sum of money, but it may be of anything else, even a part of the profits arising from the transaction; but this would rather be a partnership than the contract of bottomry. 1252. The lender on bottomry has a lien on the ship which overrides and takes precedence of all prior liens. It holds good against subsequent purchasers, but, like all other admiralty liens, may be lost by unreasonable delay. But the seamen have a lien for their wages for the voyage for which the loan is taken, and for subsequent voyages, superior to the bottomry lien. 1253. Where the loan is taken by the master, if the vessel arrives safely, the lender has a lien on the vessel, and the borrower is also personally liable. But the owners are only liable to the amount of the pledge which comes into their possession. Thus if the vessel is lost by barratry, and the lender has not assumed that risk, the owners are not personally liable on the bond.1 1254. The owner of a vessel may borrow upon bottomry whether the ship is in a home port or not; and it is immaterial whether the money be borrowed for the use of the ship or not.128 The only question in such a case would be whether the contract would constitute a lien in admiralty, or would be enforceable merely as a common law lien. The better opinion is that it is a true admiralty lien. 1255. The master of a ship may borrow upon bottomry in certain cases. It is immaterial whether the master be appointed by the owner, or necessarily appointed abroad, or having been mate, has succeeded to the command on the death of the master. The authority of the master to hypothecate the ship rests upon the necessity of the case, and is supported only upon proof of such necessity. In general, it may be said that a master cannot borrow on bottomry if he can get the money in any other way; but there are a few material facts upon which the question usually depends. The master cannot borrow if he can communicate with the owner, and for this reason he cannot hypothecate the ship in a home port, or in the port where the owner resides.129 Nor can he hypothecate the ship if he could have obtained the necessary money or supplies on the personal credit of the owner or himself. He can only borrow when a loan is absolutely necessary for the safe continuance of the voyage, and the lender must inquire into the necessity.130 The master is a competent witness to prove that the necessity existed.131 1256. A bottomry bond cannot be given for prior advances unless in pursu 127 The Virgin, 8 Pet. 538. 128 The Draco, 1 Sumn. C. C. 157; Conard v. Atlantic Ins. Co., 1 Pet. 436; The Atlas, 2 Hagg. Adm. 48. 129 The Enterprise, Bee, Dist. Ct. 345; The Ship A. E. I. Bee, Dist. Ct. 120. 130 The Aurora, 1 Wheat. 96. 131 The Medora, 1 Sprague, Dist. Ct. 138; The Magoun, Olc. Dist. Ct. 55. 132 ance of an agreement at the time the advances were made." If the master fraudulently gives a bond for a larger sum than that actually advanced, the bond is void, and the lender has no lien on the ship even for the sum actually advanced, 133 1257. Respondentia is a loan of money on goods laden on board of a ship, which in the course of the voyage must, from their nature, be sold or exchanged on maritime interest, upon this condition: that if the goods should be lost in the course of the voyage by any of the perils enumerated in the contract, the lender shall lose his money; if not, that the borrower shall pay him the sum borrowed, with the interest agreed upon. 1258. The contract is called respondentia because the money is lent on the personal security of the borrower. It differs from bottomry principally in the following circumstances: bottomry is a loan on the ship, respondentia on the goods; the money is to be repaid to the lender, with maritime interest, in the one case upon the arrival of the ship, and of the goods in the other. In all other respects the contracts are nearly the same, and they are governed by the same principles. In the former, the ship and tackle, being hypothecated, are liable as well as the person of the borrower; in the latter, the lender has, in general, only the personal security of the borrower.134 As in bottomry, so in respondentia, a master can only borrow when a necessity exists; and he must resort first to the ship and freight to obtain money. 1259. If the contract clearly contemplates that the goods on which the loan is made are to be sold or exchanged free of any lien in the course of the voyage, the lender must rely solely upon the personal liability of the borrower. 1260. Gaming is a contract between two or more persons, by which they agree to play by certain rules at cards, dice, or other contrivance, and that one shall be the loser and the other shall be the winner. When considered in itself and without any end proposed by the players, there is nothing contrary to natural equity, and the contract may be viewed as a reciprocal gift, which the parties make of the thing played for, under certain conditions. The practice of gaming, however, has been justly considered as perverting the activity of the mind, tainting the heart, and depraving the affections; and by the frequent and great reverses of fortunes which it occasions, becoming the source of great misery, suggesting constant temptations to fraud and the perpetration of the most atrocious crimes. In most governments, therefore, games have been laid under certain restrictions, and money lost at play may be recovered back, if paid, or if it be not paid, no action lies to compel the payment. Some games depend altogether on skill, others upon chance, and some others are of a mixed nature. Billiards and chess are examples of the first; lottery, of the second; and backgammon, of the last. 1261. At common law all games are lawful, unless some fraud has been practiced or such games are against public policy. Each of the parties to the contract must have a right to the money or thing played for; he must have given his full and free consent, and not be entrapped by fraud; there must have been equality in the play; the play must have been conducted fairly. But even when all these rules have been observed, the courts will not countenance gaming by giving too easy a remedy for the recovery of money won at play. Indeed, it must be confessed that the law greatly descends from its dignity when it lends its aid to give effect to any game, however innocent.135 132 The Virgin, 8 Pet. 538; The Hebe, 2 Wm. Rob. Adm. 146; Aurora, 1 Wheat. 96; Mary, Paine, C. C. 674. 133 Brig Ann C. Pratt, 1 Curt. C. C. 340. 135 Bacon, Abr. Gaming (A). 1262. When fraud has been practiced, as in all other cases, the contract is void; and in some cases, when a party has been guilty of cheating by playing with false dice, cards, and the like, he may be indicted at common law, and fined and imprisoned. 136 1263. Statutes have been passed in perhaps all the states forbidding gaming, prohibiting the recovery of money won, and allowing the recovery of money lost and paid over. 1264. A wager is a bet; a contract by which two parties, or more, agree that a certain sum of money, or other thing, shall be paid or delivered to one of them, by the other, on the happening or not happening of a specified event. Sometimes the thing bet is put into the hands of a third party, called a stakeholder, to be delivered to the winner. 1265. The common law does not prohibit all wagers,' 137 but to restrain them within the bounds of justice the following conditions must be observed: each of the parties must have a right to dispose of the thing which is the object of the wager; each must give a perfect and full consent to the contract; there must be equality among the parties; there must be good faith between them; the wager must not be forbidden by law.138 1266. The common law is followed in some of the states, and wagers on indifferent subjects not prohibited by statute are lawful.139 The contrary is held in other states." 140 141 1267. Wagers on the event of a public election, laid before the poll is open,' or after it is closed,142 are unlawful. Wagers are against public policy, if they are made in restraint of marriage,143 or as to the mode of playing an illegal game, or on an abstract, speculative question of law, not arising out of circumstances in which the parties have a real interest.1 144 145 1268. Wagers as to the sex of an individual,146 or whether an unmarried woman had ever borne, or would have a child,147 or whether Napoleon Bonaparte would be removed or escape from St. Helena within a certain time,148 have been severally holden to be illegal. The supreme court of Pennsylvania have laid down the rule, through one of the judges, that every bet about the age, or height, or weight, or health, or circumstances, or situation of any person, is illegal; and this, whether the subject of the bet be a man, woman, or child, married or single, a native or foreigner, in this country or abroad.' 136 1 Russell, Cr. 106. 187 Morgan v. Richards, 1 Browne, Penn. 171; 11 Coke, 87. 138 Pothier, Jeu. n. 8. 149 139 Johnson v. Fall, 6 Cal. 359; Bass v. Peevey, 22 Tex. 295; Beadles v. Bless, 27 Ill. 320; Grayson v. Whatley, 15 La. Ann. 525. 140 Perkins v. Eaton, 3 N. H. 155; Ball v. Gilbert, 12 Metc. Mass. 399. 141 Smith v. McMasters, 2 Browne, Penn. 182; Allen v. Hearn, 1 Term, 56; Wheeler v. Spencer, 15 Conn. 28; Murdock v. Kilbourn, 6 Wisc. 468; McAllister v. Hoffman, 16 Serg. & R. Penn. 147. 142 McAllister v. Hoffman, 16 Serg & R. Penn. 147; Laval v. Myers, 1 Bail. So. C. 486. 143 Good v. Elliott, 3 Term, 693; 10 East, 22. 144 2 H. Blackst. 43. 145 Henkin v. Guerss, 12 East, 247. And see Henkin v. Guerss, 2 Campb. 408 and note. 146 Henkin v. Guerss, 12 East, 247; 1 Barnew. & Ald. 683. 147 Ditchburn v. Goldsmith, 4 Campb. 152. 148 Phillips v. Ives, 1 Rawle, Penn. 36; Gilbert v. Sykes, 16 East, 150. 149 Per Huston, J., Phillips v. Ives, 1 Rawle, Penn. 42. 312 VOL. I.-2 P 1288. Factors or commission merchants. 1289. Ship's husband. 1290. Masters of ships. 1291. Partners. 1292. Public agents. 1293-1296. Mode of appointing agents. 1294. Express appointment. 1295. Implied appointment. 1297-1323. Authority of the agent. 1298. General and special authority. 1301. Lawfulness and unlawfulness of authority. 1302. Naked authority, and coupled with an interest. 1304-1308. Execution of authority. 1305. By whom to be executed. 1306. How to be executed. 1309-1323. Ratification of agent's acts. 1310. By what acts ratification is made. 1315-1323. Effects of ratification. 1316. Ratification when the party had no authority. 1318. When the agent has exceeded his authority. 1320. What acts may be ratified. 1323. Time and extent of ratification. 1324-1330. Rights of the principal. 1325. Principal's rights against the agent. 1328. Principal's rights against third persons. 1331-1337. Liabilities of the principal. 1332. Principal's liability to agent. 1335. Principal's liability to third person. 1338-1347. Rights of the agent. 1339. Agent's rights against the principal. 1342-1347. Agent's rights against third persons. 1343. Rights arising on contracts. 313 |