XX. declared to be on money expended for reclaiming the CHA P. hip and cargo, valued at the fum, which fhall be declared hereafter. The lofs to be paid, in cafe the flip does not ar"rive at Marfeilles, and without further proof of interest than this policy warranted free from all average, and "without the benefit of falvage." It appeared that the plaintiffs were proprietors of the targo but not of the fip. That the fhip originally failed with the cargo on board from Riga to Marféille, and that an insurance had been effected at Bremen upon the cargo for that voyage; in the courfe of which fhe was taken, and brought into Falmouth, by an Engif privateer. That a fentence of condemnation had been there obtained, which was afterwards reversed upon the prize having been proved to be a neutral fhip, but the expenfes of procuring that reverfal were ordered by the Admiralty Court to be a charge upon the cargo. The plaintiff's agents accordingly paid the fum of 1,031. 145. for the expenfes of reclaiming the thip and cargo; and immediately procured the policy in question to be effected in Januarý 1781, according to the purport of the memorandum. In the February following, the ship fet fail from Falmouth with the original cargo on board, in the profecution of her voyage to Marfeilles; but on the 26th of the fame month, before her [ 408 】 arrival there, was captured by a Spanish ship, and carried into Ceuta in Spain, where fhe was again condemned. An appeal was brought in the fuperior court of Madrid, which promifing to be of long continuance, the cargo, which was of a perishable nature, was ordered to be fold, and the proceeds to be brought into court, to wait the event of the fuit. In May 1783, the veffel was reftored by fentence of the court, and the furplus of the proceeds, which arofe from the fale of the cargo, was paid to the owners, deducting the expenses incurred in Spain in profecuting the appeal. After all the charges paid, there only remained twenty-fix rix dollars. As foon as the fhip was liberated, fhe failed from Ceuta to Malága, in order to refit, and having there made the neceffary repairs, fet fail for Bremen, and in that voyage was loft. The infurance made upon the cargo at Bremen has been paid. The declaration averred, that "whilft the fhip was proceeding "in her faid voyage from Falmouth to Marseilles, and before she "could arrive at Marfeilles, he was captured by the Spaniards, "and thereby the faid fhip, and alfo the goods and merchandizes on "board her, were totally loft to the plaintiffs." At the trial it was CHAP. was objected on the part of the defendant, 1ft, That this XX. was not an infurable intereft; and 2dly, That the plaintifs £409 Ï 409 could not recover upon the policy in this form of declaring, for they ftated the lofs to have happened by capture; whereas, though the veffel was captured, yet, having been afterwards reftored, the might have reached her destined port, notwithftanding the capture, in which cafe the underwriters would have been discharged by the terms of the memorandum. I was of that opinion, and upon the last ground I nonfuited the plaintiffs.' This cafe was very fully argued both upon the merits, and the formal objection, after which all the Judges fpoke upon the queftion. Lord Mansfield."A lofs accrued upon the cargo in the voyage: the underwriter is fued and the lofs is averred in the declaration to be by capture. The fact of the cafe is, that the fhip was taken by a Spanish privateer, but was afterwards restored, and in a condition to pursue the voyage, and was afterwards loft in another voyage. Mr. Juftice Willes. plaintiffs cannot recover. In the first place there was certainly a deviation, for the ship fet fail for Malaga instead of proceeding to Marfeilles. Secondly, the plaintiff has declar ed for a lofs by capture: but, after the capture, the policy might ftill have been complied with by the fhip's going to Marfeilles; and therefore the lofs cannot be faid to have happened by that circumftance." Upon this cafe, it is clear, that the Mr. Juftice Afbburft and Mr. Juftice Buller alfo delivered their opinions, agreeing with Lord Mansfield and Mr. Juftice Willes upon the formal objection; and both went much at large into the merits, upon which I forbear to follow them or the Chief Justice, as what paffed upon that fubject is not material to our prefent inquiry. But where a lofs is averred to be by perils of the fea, and fome of the goods infured are spoiled, and others faved, it is allowable to give the expense of the falvage in evidence upon fuch fuch an averment, because it is a confequence of the accident CHA P. laid in the declaration. XX. In an action on a policy of insurance, for insuring goods Cary v. King, on board the ship A. the plaintiff declares that the fhip fprung Caf. Temp. a leak, and funk in the river, whereby the goods were spoil- B. R. 304. Hardwicke, ed. The evidence was, that many of the goods were spoiled, but fome were faved; and the queftion was, Whether the plaintiff might give in evidence the expense of salvage, that not being particularly laid as a breach of the policy in the declaration. Lord Hardwicke Chief Juftice." I think they may give it in evidence; for the infurance is against all accidents. The accident laid in this declaration, is, that the ship funk in the river; it goes on and fays, that by reafon thereof the goods were fpoiled, that is the only fpecial damage laid: yet it is but the common cafe of a declaration that lays fpecial damage, where the plaintiff may give evidence of any damage that is within his caufe of action as laid. though it was objected, that fuch a breach of the policy thould be laid, as the infurer may have notice to defend it; it is fo in this cafe, for they have laid the accident, which is fufficient notice, becaufe it must neceffarily follow that fome damage did happen.” And 426 CHAP. 457. CHAPTER THE TWENTY-FIRST. THE Of Bottomry and Refpondentia. 'HE contract of bottomry is in the nature of á mortgage of a ship, when the owner of it borrows money to enable him to carry on the voyage, and pledges the keel 2 Blacks. Com. or bottom of the fhip, as a fecurity for the repayment: and it is understood, that if the thip be loft, the lender alfo lofes his whole money; but if it return in fafety, then he thall receive back his principal, and also the premium or intereit ftipulated to be paid, however it may exceed the ufual, or legal rate of intereft. When the fhip and tackle are brought home, they are liable, as well as the perfon of the borrower, for the money lent. But when the loan is not made upon 2 Blacks. Com. the veffel, but upon the goods and merchandizes laden 458. thereon, which, from their nature, must be fold or exchanged in the courfe of the voyage, then the borrower only is perfonally bound to answer the contract; who therefore in this cafe is faid to take up money at refpondentia. In this confifts the difference between bottomry and refpondentia; that the one is a loan upon the fhip, the other upon the goods in the former the fhip and tackle are liable, aş well as the perfon of the borrower; in the latter, for the moft part, recourse must be had to the perfon only of the borrower. Another observation is, that in a loan upon bot2 Valin Com. tomry, the lender runs no risk though the goods fhould be loft; and upon refpondentia, the lender must be paid his principal and intereft, though the fhip perifh, provided the goods are fafe. But in all other respects, the contract of bottomry and that of respondentia are upon the same footing; the rules and decifions applicable to one, are applicable to both; and, therefore, in the courfe of our inquiries, they shall be treated as one and the fame thing, it being fufficient to have once marked the diftinction between them. P.4. Thefe XXI. Thefe terms are alfo applied to another fpecies of contract, CHA P. which does not exactly fall within the defeription of either; namely, to a contract for the repayment of money, not upon 2 Blacks. Com. the hip and goods only, but upon the mere hazard of the 458. 1 Siderfin, voyage itfelf; as if a man lend 1000l. to a merchant to be employed in a beneficial trade, with a condition to be repaid with extraordinary intereft, in cafe a specific voyage named in the condition fhall be fafely performed: which agreement 27. is fometimes called fœnus nauticum or ufura maritima. But as Molloy, lib. 2. this fpecies of bottomry opened a door to gaming and ufuri- c. 11. f. 8. ous contracts, especially in long voyages, the legiflature, at the time it fuppreffed infurances upon wagering policies, introduced a claufe, by which it was enacted, "That all fums 19 Geo. 2. c. 37. f. 5. "of money lent on bottomry, or at respondentia upon any fhip or fhips belonging to his Majesty's fubjects bound to or "from the Eaft Indies, fhould be lent only on the fhip, or on "the merchandize or effects, laden or to be laden, on board "of fuch fhip, and fhould be fo expreffed in the condition of "the said bond; and the benefit of salvage should be allow"ed to the lender, his agents or affigns, who alone should "have a right to make affurance on the money fo lent; and "in cafe it fhould appear that the value of his fhare in the "thip or in the merchandizes or effects laden on board of "fuch fhip, did not amount to the full fum or fums he had "borrowed as aforefaid, fuch borrower fhould be refponfible to the lender for fo much of the money borrowed, as he "had not laid out on the fhip or merchandizes laden there"on, with lawful intereft for the fame, in the proportion "the money not laid out fhould bear to the whole money "lent, notwithstanding the fhip and merchandizes fhould be "totally lost." This ftatute has entirely put an end to that fpecies of contract which was laft mentioned, namely, a loan upon the mere voyage itself, as far, at least, as relates to India voyages; but as none other are mentioned, and as expreffio unius eft exclufio alterius, thefe loans may be made in all other cafes, as at the Common Law, except in the following inftance, which is another flatute prohibition. The ftatute alluded to 7 Geo. 1. c. 21. declares, that all contracts made or entered into by any of L. 2. his Majefty's fubjects, or any perfons in truft for them, for or upon the loan of any monies by way of bottomry, or any |