
    Ferdinand Clark v. Peter Laidlaw and another.
    The master of a vessel cannot hypothecate her for a pre-existing debt, and the necessity for the loan must be shown to have existed at the time it was made. The bond is not evidence of this necessity, nor of the absence of other means of obtaining the money. This must be shown aliunde, and otherwise than by the statement of the master, who cannot acquire authority from his own assertions.
    Appeal from the Commercial Court of New Orleans, Watts, J.
    
      W. S. Upton, for the appellant.
    
      Carter and Pierce, for the defendants.
   Martin, J.

The intervenor, B. C. Clark, is appellant from a judgment of nonsuit. The facts of the case are these : The defendant Laidlaw, was the owner of a steamboat which he chartered to Maxon & Young, who put the defendant Gillet therein, as master. She was consigned to the plaintiff, F. Clark, in Havana, who instituted a suit against the present defendants on a bottomry-bond, given to him on the steamboat, by the other defendant Gillet, on an allegation that the charterers, not having the means to pay the expenses of the voyage, had surrendered her to the master, who, being unable to procure money to pay the charges against her, and those attending her return home, otherwise than by an hypothecation, had received from him (F. Clark) the sum of $1371 43, and had given the bond and bill of exchange sued on. B. C. Clark, a creditor of F. Clark, by a judgment, had the present suit sold under execution, and, having become the purchaser of it, intervened. His right to do so was doubted by the first Judge, but the view which he took of the whole case, led him to the conclusion that it was unnecessary to examine it. A non-suit was entered as to the interest of F. Clark, and the suit proceeded between B. C. Clark and the defendants. The only evidence of the refusal, neglect, or inability of the charterers to pay the expenses of the boat, and of the necessity of her hypothecation, consisted of the recital of the bottomry bond, and of the statements of the defendant Gillet to F. Upton. No detail of the expenses was given. This did not appear to the first Judge sufficient to sustain a recovery. He, therefore, gave the judgment appealed from. As the defendants and appellees have not required of us a different judgment than that of the Commercial Court, it has not become our duty to examine the rights of the intervening party and appellant under the fi. fa. The interest of ship-owners would be put in great jeopardy, if they were bound to pay any bill drawn on them, or bottomry bond given by the master, even in the case in which he was put on board by a charterer, without requiring proof of the circumstances which authorized the master to obtain money in a foreign port, on the credit of his owners. “ The master cannot hypothecate for a preexisting debt, and the necessity of a loan must be shown to have existed at the time it was made.” Kent’s Com. 367. The Brig Hunter, Ware’s Rep. 249. The bond is not evidence of this necessity, nor of the absence of other means of obtaining the money. This must be shown aliunde, and otherwise than by the' assertion of the master, as he cannot acquire an authority from his own assertion only. The Commercial Court did not err.

Judgment affirmed.  