BONDS OF PREFERENCE. bably the forms authorized by the Act of 1862 were not intended to be employed in such cases; and it is clearly advisable to adhere to the forms introduced by the Merchant Shipping Act of 1854, in all cases where such forms are suitable, in like manner as if the Act of 1862 had not been passed. Bonds of bottomry and respondentia, however, the nature of which is just about to be explained, do not appear to be within the scope of the Act of 1854; and conveyances of such bonds can be written in the form authorized by the Act of 1862, and intimation thereof given in one or other of the modes thereby introduced. I now come to bonds of bottomry and respondentia, both of which are essentially contracts of hazard. The former constitute securities over the ship, the latter over the cargo; and bonds of bottomry may be granted either by the owners, or, in certain circumstances, by the master. The owners can grant such bond at any time. It is for money borrowed; but it is a condition of the transaction in general, that repayment shall not be demanded if the ship shall be lost during her voyage; in consideration of which, a high rate of interest or premium is stipulated to be paid to the lender; and, if the ship is not lost, the bond is good both for the sum lent and the premium stipulated. The master can grant such bonds only when a ship is in a foreign port; or in a situation where he cannot communicate with the owners; or when in absolute want of necessary supplies. On that account, the bond must bear to be granted for money borrowed for the use of the ship, as the master has no power to hypothecate the ship in any other way than for necessary furnishings. Neither has he power to bind the owners personally even for these. In the case of Cochrane,' the master had not only bound the owners (which it was beyond his power to do), but also given his own personal obligation. It was clearly in his power to undertake a personal obligation for the cost of the furnishings to the ship, equally as for any other sum or debt, but such obligation was not appropriate to a bond of bottomry. Neither can the master, though at a foreign port, make drafts by bill on the owners in favour of the owners' agent at such port, even for necessary disbursements. He cannot give to the sum contracted on account, for furnishings, the rank and privileges of a bill-debt. It remains, at best, a sum due on account.2 Such bonds, when granted by the owners, are preferable according to priority of date. When granted by the master, the last in date is preferable over the others, and so on; the reason being that, in the case of the master's bonds, the last furnishings are necessary for preserving or securing those made before. The bond of respondentia is granted by the person having right to the cargo on board a ship laden or being laden for a particular voyage, 1 Cochrane, 14th Feb. 1854, 16 D. 548. 2 London Joint-Stock Bank, 15th July 1859, 21 D. 1327. intended to constitute a security over the cargo for repayment of the sum lent, with the stipulated interest or premium. But, as the bond of bottomry becomes nugatory if the vessel is lost, so the bond of respondentia is of no avail if the cargo is lost. It appears to be doubtful whether such bonds constitute effectual securities over the cargo, and whether they are any better than personal obligations. PARTY. This subject will be closed with a notice of the Charter-party, which CHARTERis of the nature of a maritime lease; being, as exemplified in the Juridical Style Book,' a contract between the owners of a vessel and parties who desire to have the use of the vessel on hire for a particular voyage, or for a certain period of time. The owners grant and set the vessel to freight, to the hirer, for the voyage or period of time, as the case may be; engaging that she shall, within a period specified, be in good order, duly manned, and fit for navigation; that she shall be at a specified port, by a day named, ready to receive cargo on board; that the master shall receive the cargo, shall sail without delay to her destination, deliver the cargo, receive the home cargo, sail homewards without delay, and deliver the home cargo; the master not taking any other goods on board, and the owner being liable for goods lost or damaged, with 30 per cent. on their original cost. On the other hand, the hirer engages to furnish cargoes, and to pay freight at the rate agreed on. The rate of demurrage is also fixed; that is, the rate at which the hirer may detain the ship in loading or unloading, for a certain number of days, beyond the time specified in the leading clause of the agreement. The owner reserves his lien on the cargo for the freight; and both parties become bound to fulfil their parts of the premises under a penalty. The forms of various other maritime writs will be found in the STAMP DUTIES. schedules annexed to the Merchant Shipping Act of 1854, and in the Juridical Styles. The Merchant Shipping Act,3 which is of great length, and is divided into eleven Parts, exempts from stamp-duty all instruments used in carrying into effect Part II., being that part of the Act which relates to British ships, their ownership, measurement, and registry, and which we have before been considering. It likewise exempts from stamp-duty all instruments which, by Parts III., IV., VI., or VII. of the Act, are required to be made in forms sanctioned by the Board of Trade, if made in such forms; and all instruments used by, or under the direction of, the Board of Trade for carrying such parts of the Act into effect. These several Parts of the Act last mentioned relate respectively to masters and seamen, to pilotage, etc. A bond and vendition of a ship in security, however, is liable in the stamp-duty corresponding to the sum in the bond.* GENERAL SPECIAL TITLE VI. THE FACTORY AND COMMISSION. PERSONS who are of full capacity to act by themselves can in general act by means of others empowered by them for that purpose. In like manner, minors and married women can act by means of others duly empowered by them, with consent of their curators and husbands respectively; and, in some other cases, the power of acting can be deputed by one person to another. The persons empowered by others to act for them are called factors, or commissioners, or attorneys; and the deeds by which they are appointed bear the name of factories, commissions, or powers or letters of attorney. These deeds are all, substantially, of the same nature. Where the party to be empowered is called a factor,-as in the ordinary case of one who is to uplift rents and manage a land-estate or house property, the deed is called a factory. When the party is to have powers of a higher or larger and more unusual character, for example, to sell land or to make up titles to an estate,—— the term 'commission' is usually employed to describe the deed. The name of powers or letters of attorney, I think, is imported from England. It is usually employed as descriptive of empowering deeds which are to be used in England, or in the colonies or foreign parts; and for deeds authorizing the buying and selling of stocks or shares of stock in this country. But, provided the requisite powers are duly given, it matters not whether the deed is described by the one name or the other. We can have a commissioner to uplift rents, an attorney to sell lands or make up titles,-indeed the procuratory in conveyances of lands is often extended to the appointment of an attorney for the latter purpose,-and we can have a commissioner to buy and sell stocks and shares. The great practical distinction, applicable to deeds of the class now before us, is that they are general or special, or both general and special. The general factory confers powers of management only of the most simple and ordinary kind. The special factory authorizes to be done simply the act or acts which it expressly names, and nothing more. The nature of those acts may, or may not, be such as would fall under a general factory. But factories are very often both general and special. We frequently SPECIAL have added to a general factory a special clause, or set of special clauses, GENERAL AND applicable to one or more particular act or acts, or class of acts. In FACTORY. such cases, in conformity with the principles usually applicable to deeds with both general and special clauses, the special may operate a limitation of the general factory, as the special clauses will confine it to acts of the kinds authorized by these special clauses, and which may be less than a general factory would authorize. But it is usual to find the special clauses go beyond the general powers, and authorize acts which the general would not embrace. The clauses of the factory, whether general or special, or both united, CLAUSES OF are as follows: 1. The narrative or introductory, containing the cause of granting, which may be (for example) absence, or intended absence, of the granter from Scotland, sickness of the granter, or, generally, 'certain good causes and considerations.' 2. The nomination of the factor or factors. 3. The empowering clause or clauses, containing the description or enumeration of the powers which the factor or factors may exercise. 4. A declaration that all acts and deeds lawfully done by the factor or factors, in virtue of these powers, shall be equally valid as if done by the granter himself. 5. It is usually provided that the factory shall subsist until recalled by a writing under the granter's hand; but a provision to that effect is not necessary either to make the deed good until recalled, or to give the granter power to recal. 6. The factor is taken bound to account to the granter for his intromissions, and to pay over the free balance of cash in his hands, whenever required; and, if he is to have remuneration, it will here be said that he is to retain a reasonable sum on that account. But it is usual and proper to declare that persons transacting with the factor shall have no concern with this obligation to account, the same being merely personal, as between the granter and factor. 7. & 8. There will then be the registration and testing-clauses in usual form. We shall consider these clauses in their order as above; the only remark occurring on the narrative or introductory clause being, that the factory or commission, when of a very special nature, will require to contain a pretty full narrative in order to make the empowering clause intelligible. THE FACTORY. OF FACTORS. As regards the appointment of the factor or factors, if two or more APPOINTMENT are named, the powers must be exercised by them jointly, unless the contrary is specified. It will generally be convenient to name the majority, while more than two survive and continue acting, to be a quorum; and, in some cases, such as commissions for making up titles, the powers may with propriety be conferred on each of the parties POWERS OF FACTORS. named, so that any one of them may perform all the necessary acts with or without concurrence of the others. There may, or may not, be a sine quo non, as in the case of trusteeships. As regards the powers, a mere general factory is of very limited operation. In words it says that the factor is to manage the granter's affairs, and act for him therein, as he could do himself. But, under such a deed, it is doubtful if the factor could do more than perform such acts of ordinary administration as are necessary to preserve his constituent's estate, and prevent it from becoming unproductive. I doubt if a factory so general would authorize the factor to uplift rents and interests, except in a case of emergency; and it is certainly usual to give special powers when such acts are to be executed. In cases such as the following, the general factory will not (save in very exceptional circumstances) serve; special powers must be conferred on the factor: 1. Where lands or other heritable estate are to be sold by him for the owner. The importance of being clear and explicit, in framing the powers of a factory as to this point, will be shown by the case of Thomas.1 The Court were there equally divided upon the question whether the factory, which was by testamentary trustees, in favour of one of their own number, was, by itself, so expressed as to confer the power of sale on the factor. 2. Moveables of great value cannot be sold by a factor without special powers from the owner. The question of degree, as regards the value, will be judged of in every case according to circumstances. 3. The power to purchase lands or moveables stands, as far as the constituent is concerned, on the same footing as the power to sell. Of course, a factor buying lands, though without power to bind his constituent, can effectually bind himself. Under this head may be classed the power of a factor to contract to acquire for his constituent a piece of ground in feu. In the case of Steuart, the question was raised whether an averment of verbal authority to contract for a feu could competently be proved by parole. 2 4. Power to serve any one heir to a predecessor requires a special mandate.3 Under our former law, an agent and factor acting in virtue of a general factory was held to have sufficient power to make up his constituent's title to a lucrative succession by service; the constituent having written to the factor, desiring that he should be served heir in the estate, if not already set about;' and the service having been expede, when the constituent was on military duty abroad. A mere general power would not now authorize the expeding of a service. 1 Thomas, 4th July 1829, 7 Sh. 828. 2 Steuart, 17th July 1857, 19 D. 1071. 3 Service of Heirs Act, 10 & 11 Vict. c. 47, s. 4. 4 Molle, 13th Dec. 1811, F. C. |