
    * John Appleton versus George Crowninshield
    Money was lent on a bottomry bond, conditioned that if the vessel should perform the voyage, the money should be paid in twenty days after her arrival; if she should be lost through perils of the seas, or by fire, or the enemies of the United States, the bond to be void. The vessel was captured by a British cruiser and condemned as lawful prize; upon the appeal, the condemnation was reversed, and full compensation received by the owner, for vessel, cargo, and freight, by virtue of an award of the commissioners under the treaty of November, 1794.
    It was held that the obligee could not recover in an action of debt brought on the bond.
    Debt upon a bond dated November 25th, 1793, in the penal sum of £300, lawful money, the condition of which is in these words: “ Whereas the above-bounden George Crowninshield hath borrowed and received of the above-named John Appleton one hundred and fifty pounds, on bottomry, being on the bottom of the schooner Charming Sally, whereof Richard Crowninshield is, at present, master, and now bound on a voyage from hence (Salem) to one or more islands in the West Indies, and from thence to any port or ports whatsoever, and from thence back to Salem, or port of discharge in this commonwealth; which sum of money is at the risk of the said John, but for the proper account and, use of the said George; if therefore, the said schooner shall perform the said intended voyage, or voyages, and the said George, his heirs, executors, or administrators, shall and do, well and truly pay, or cause to be paid, to the said John, his heirs, executors, administrators, or assigns, the full sum of me hundred and fifty pounds, lawful money of Massachusetts, together with three per cent, per month, for interest and adventure, from the date hereof, until this bond is discharged, and within twenty days next, after said schooner shall arrive at Salem, or port of discharge in this commonwealth; or in case said schooner should be lost, through perils of the seas, or by fire, or the enemies of the United States, while she is performing the said intended voyage, or voyages, then this obligation shall be void, and of none effect; but otherwise shall be and remain in full force, strength, and virtue.”
    The defendant pleads in bar of the action that the said schooner sailed on the said voyage, but in the prosecution thereof was cap tured by certain subjects of the king of Great Britain, acting under his authority, and condemned as a lawful prize, against the will, and without the fault of the defendant, by means whereof the said schooner never performed * the said voyage, and [ * 444 | has never returned to Salem, or any other port of discharg
    
      The plaintiff replies, and, admitting the sailing, and capture, and condemnation of the schooner, as alleged by the defendant, says that afterwards the lords commissioners of appeals in Great Britain reversed and annulled the condemnation of the said schooner; and that the commissioners, under the treaty of amity, commerce, and navigation, between the United States and Great Britain, awarded to the defendant full compensation for his schooner, her cargo, and freight, with interest, &c., setting forth the sum awarded for each article, to be paid by the British government to the defendant or his assigns; and avers that the same had been paid to the defendant, and were a full compensation for the said schooner, cargo, and freight.
    The defendant demurs generally to this replication, in which the plaintiff joins.
    The cause was argued upon these pleadings at the last November term, in this county, and again spoken to at the present term, by Story, for the defendant, and by Dexter and Prescott, for the plaintiff.
    
      Story,
    
    in the first argument, said he should contend, in the first place, that this bond had never been forfeited. And in support of this point he should argue, 1st. That the vessel in this case was lost by the perils of the seas. This phrase, perils of the seas, compre hends all those accidents and misfortunes, to which ships are exposed at sea, and which no human foresight or precaution can avert or resist . Thus a loss by pirates  and capture  are within these words. So Pothier considers arrest and detention as casus fortuitus 
       ; so loss by running foul of another ship is within the terms perils of the seas 
      .
    The capture occasioned a total loss, and was consummate by condemnation ; and it was, therefore, such a loss as is within the bond, although a seizure, followed only by a temporary [ * 445 ] * detention, would not be . Capture is prima facie a total loss, but condemnation makes it so at all events, for it. operates a change of the property .
    The subsequent words in the condition of the bond, loss by enemies of the United States, do not limit or contract the effect and force of the words perils of the seas. They are introduced in all the common forms of bottomry bonds [vide Park’s and Marshall’s 
      
      Appendices], and yet no writer makes any exception to the meaning of the words perils of the seas, on that account. On the contrary, the best writers, in treating on bottomry, enumerate capture as a peril of the kind, and as within the condition of the bond.
    If it is said that capture, within the meaning of these writers, means capture by an open enemy in war, and not by a power at peace, which can only be an arrest or detention,—-we answer that the word does not necessarily import this ; and in policies of insurance, every capture, whether by friends or enemies, is included among the perils enumerated; and it is said that, though not expressly enumerated, bottomry bonds include nearly the same perils. Piracy, for instance, though not mentioned in a bottomry bond, is within the words; by the same reason, capture by friends, for it is a casualty at sea, which cannot be prevented any more than capture by enemies .
    2. But we contend that this was a loss by the enemies of the United States; for a capture and condemnation as lawful prize, without the default of the owner, as is agreed by the pleadings to have been the case here, are quoad hoc a hostile capture, and contrary to the law of nations. It is not necessary that there should be an open war, in order to make a seizure and condemnation a hostile capture. In the cases which arose upon the Russian embargo, it was admitted by the counsel on both sides, and expressly declared by Chambre, J., that the acts of the Russian government towards those ships and their crews were hostile, and that the * ships and cargoes were to be considered as [ * 446 J under capture, and not under an embargo. Yet no declaration of hostilities had ever been made on the part of Russia. The whole reasoning of Lord Ellenborough, in giving the opinion of the Court of King’s Bench, goes to the same point, viz., that the act was, in fact, an act of hostility, and amounted to a capture, though the Russian government chose to call it by the mild name of an embargo .
    The Court here will recollect the state of things when the transaction, now under consideration, took place. Though no war existed in form, no declaration of hostilities had been made, yet British cruisers were sweeping every American vessel from the ocean; and the Vice-admiralty Courts were condemning them, with or without cause, as fast as they were brought within their jurisdiction.
    It was urged at the trial that, by the subsequent restoration, the property was to be considered as never having been captured. But we apprehend that the restoration does not alter the case at all. If the loss was total, and the voyage never performed, the bond was never forfeited, and of course no action lies upon it. That the loss was total, the authorities, before cited, show satisfactoi ily. All subsequent restoration must be considered in the nature of salvage; but there is neither salvage nor average on bottomry bonds .
    The lender is not liable for a partial loss. If the ship had been acquitted in this case, however great the expense to the owner, the lender would have received his whole principal and interest without deduction ; on the other hand, he is not entitled, unless the voyage "be performed. There is no hardship in this rule of the law; or if there is, it is mutual and equal on each side. The debt is to accrue on a contingency, by the express agreement of the parties; if it does not happen, there is an end of the claim.
    There is neither law nor equity to entitle the plaintiff to recover in this action .
    But we urge further, that if any thing is due to the plaintiff, he cannot recover it in this form of action. It is not f * 447 ] pretended * that the voyage was performed. A loss happened within the perils enumerated. By capture and condemnation, all right to recover on the bond was, at least at one time, gone; and if once gone, it can never be revived. An action upon the bond can only be maintained for a debt due according to the terms of it; and not for any equitable claims or demands arising from collateral transactions. Where the demand arises out of an instrument on performance of certain conditions, if those conditions be not strictly performed, no action lies on the instrument, although the condition may have been beneficially performed .
    Capture and condemnation produce a dissolution of charter-parties, of contracts for wages, and for freight; and by a like principle, they produce a dissolution of this contract of bottomry . If the plaintiff has then any right of action, it cannot be on the footing of the bottomry bond; but upon a new consideration springing out of the compensation ultimately received by the defendant, and such action must be assumpsit for money had and received. But that action lies only where the defendant has received money, which ought to be paid to the plaintiff; and it has been shown that upon a bottomry contract there is neither salvage nor average. The cases where an action has been held to lie after the original contract was dissolved, were only where a beneficial service had been afterwards performed ; and this only under particular circumstances. But in the present case no such service has been performed.
    
      Prescott
    
    said he should contend, 1. That here was no final loss of the vessel in any way; and, 2. If there was a loss, that it was not within the terms of the contract in this case.
    This action may be likened to an action upon a policy of insurance against a total loss only, without benefit of salvage. It will be only necessary to reverse the parties. Suppose the present plaintiff to have underwritten such a policy for the defendant, and that in an action brought by the latter the facts should be like those disclosed by the pleadings in the case at *bar, [ * 448 ] can it be said he would recover? The same principles of sound sense, of law, and of equity, it is presumed, must govern in the decision of the present action, as would in the one supposed.
    It is not necessary to this argument for the plaintiff to deny that here has been a period when this action could not have been maintained; the remedy or right of action was suspended. But ny the defendant’s receiving the amount of his loss, he has become repossessed of his whole property with interest, and we contend that the plaintiff’s remedy is restored to him at law. In all equity and good conscience, he is most certainly entitled to a recovery.
    But if there has been a loss in this case, we still contend, 2. That it was not a loss within the terms of this contract; it was not a loss which the plaintiff undertook to bear.
    However broad and comprehensive may have sometimes been the construction of the words perils of the seas, as comprehending all the accidents or misfortunes to which those engaged in maritime adventures are exposed, the more modern and more correct interpretation of the words confines them to such accidents or misfortunes only as proceed from mere sea-damage, as stress of weather, winds, waves, storms, rocks, &c. . The authorities cited for the defendant, in support of the extended meaning, do not, in a single instance, relate to bottomry bonds or policies of insurance.
    But, even allowing the broad construction contended for on the other side to be the true one where the words are used alone, yet in this case loss by enemies-of the United States being expressly named in addition to, or rather in distinction from perils of the ' sea, it would be doing violence to the language, and contrary to all legitimate rules of construction, to include the former in the latter.
    Whether, however, it is, or is not, held to be so included, we contend further, that here has been no loss by enemies of the United States, to which species of capture the bond is confined, if, indeed, any other seizure or detention comes within the just definition of capture. Enemies must mean public [ * 449 ] * enemies, and their state of hostility must be proved either by a declaration of war, or, at least, by a general order to capture all the property of the foreign power. Neither of these existed between the United States and Great Britain, when this seizure was made. It is within the knowledge of every one that our vessels and cargoes were seized and condemned under an idea (whether just or not is not material to the present argument) that we were pursuing a commerce with their enemies, which was not allowed by the rules of a fair neutrality. So far were the two nations from open hostilities, that the most free and unrestrained reciprocal intercourse subsisted at the same time between the several ports and territories of the two countries.
    But whatever may be the perils to which the lender on bottomry is liable, nothing short of a total loss will discharge the borrower. The obligation remains, however the property may be damaged. A capture, to have the effect of discharging the borrower, must be such a taking and detention as would amount to a total loss in a case of insurance ; a temporary detention will not discharge the borrower . Neither can he claim to be discharged, upon any known and recognized principles of law or equity, when by a full and complete compensation he has been made perfectly whole.
    
      Dexter.
    
    We might rely in this case, that if there had never been a restoration of this property, or a compensation for it, still in strict law, and within the letter of this contract, the plaintiff would have been entitled to recover his money. Here is a sum of money acknowledged to be due and payable, except on certain events happening. The whole question then is, Has either of those events happened ?
    It has been argued that there was a loss within the expression perils of the seas. That extensive sense may possibly be well applied in certain cases, but certainly there can be nothing more absurd than to include capture by enemies, and loss by fire, in the general phrase, when they are immediately after mentioned as distinguished from perils of the sea, and from whatever that expression might be conceived to include. * Among [ * 450 ] all the authorities cited for the defendant upon this point, there is not one, nor can one be found, where the general phrase was held to include a particular peril specifically named in the same sentence. Where a loss by capture or detention of princes has happened under a policy of insurance, the- declaration in an action upon such policy always states it so to have arisen, and not on perils of the sea. The words are confessedly used in the large sense in bills of lading, where, however, they always stand alone.
    As to this having been a loss by the enemies of the United States, it seems hardly necessary to make on answer to the position. There is nothing in the pleadings, (and we cannot go out of the pleadings for facts, if we were disposed to,) there is nothing in the pleadings which shows a state of hostility between the two countries. For aught that appears in the case, this vessel may have been taken and condemned for carrying on a contraband trade, or for a breach of the revenue laws of Great Britain; and that would hardly be said to be a peril of the sea.
    
    But let the capture have originated in whatever cause may be imagined, the British government have, by the full compensation they have given the defendant, expressly disavowed any hostility. Perhaps had open hostilities followed this seizure, and no restoration been made or ordered, it might with some force have been argued that this was in effect a hostile capture, although at the time no hostilities had existed. We say, therefore, that at no time has the plaintiff’s right of action been suspended in strict lawbut now that, by the compensation received, all things are placed in the same situation as if no capture or detention had ever taken place, we say with confidence there has been no loss, and that on every principle of sound equity and good conscience, as well as in strictness of law, the defendant is held to pay the money demanded in this action.
    
      Story, in the close,
    observed that Marshall expressly lays it down, when treating of the perils of the sea, to which the lender on bottomry is liable, that the phrase comprehends all those accidents and misfortunes, to which ships at sea are exposed, and which human foresight or precaution cannot avert *or [ * 451 ] resist. Surely capture by a ship of war is such an accident and misfortune. Nor is there a single case in the books, since Rolle’s time, in which this has not been considered the true meaning of the words. The additional enumeration of loss by fire and enemies, is mere surplusage. It may be observed that both 
      Park and Marshall, although they give this extensive definition of perils of the seas, yet both add other perils, which they hold included in the general expression, in the forms they have given of bottomry bonds.
    But if by particularizing loss by enemies, it is excluded from the general words, still if, as the plaintiff’s counsel contend, this was no a loss by enemies, but by friends, then our defence is not weakened by thus particularizing a loss by enemies. If there was a loss, as without question there was, it must be within the phrase perils of the seas.
    
    Capture and condemnation divest all property and defeat all rights  ; and a remedy once gone is gone forever. In this case it is apparent that the voyage, upon which the money now claimed was lent, was never performed ; and it follows, as a direct and inevitable consequence, that the lender cannot demand the money.
    The case was continued for advisement, and now, at this term, the Court directed another argument on the effect which the compensation received by the defendant has upon the plaintiff’s right of action.
    
      Story
    
    argued that by the capture and condemnation the bond was discharged, the vessel having been lost by one of the perils enumerated ; and that the right to recover, being once suspended or lost, could not be revived. This principle of law, that a personal action once suspended or extinct, could not be revived, was recognized as early as 21 Edio. 4 (Year Book 3. b. case 4), where it was said by Vavisour, “ Si un personal action soit un foitz mis era suspence ou determine, il rae serra revyve apres.'” The same doctrine is established by all subsequent authorities .
    [*452] *The subsequent award of money in satisfaction cannot alter the nature of the case. It is sufficient for the defendant, if the condition has been literally complied with, or the events have happened, which were to discharge the bond; although a beneficial interest might seem to remain to him. The parties have made their own contract; they have estimated their own risks, and stated their own conditions. The plaintiff agreed to lose his money, if certain events happened; and those events have happened. Courts of justice do not sit to make contracts for the parties, but to expound and enforce them. The plaintiff pledged his money to the defendant, not to be again received, unless the voyage ivas performed; and although the defendant might, in certain events, receive as much benefit as if it were performed, this is nothing to the plaintiff.
    The case comes within the principle of Cools vs. Jennings 
       ; and the language of Lord Kenyon there is strictly applicable. It was a question whether freight was due on a charter-party. His lordship says, “ By the terms of this agreement, the defendant engaged to pay so much on delivery of the goods at Liverpool, one fourth in cash on her arrival, and the remainder by an acceptance at four months; but the goods never arrived; then at what time ivere those bills to be dated ? We do not sit here to make, but to enforce contracts. Here the question is, whether or not the plaintiff can enforce payment of the money under this contract, not having carried the goods to Liverpool, and the defendant having only undertaken to pay on their delivery at Liverpool; in answer to this action, the defendant has a right to say, Non hcec in fcedera veni.” To the same purpose are the cases of Curling vs. Long 
      , Cutter vs. Powell 
      , and Cowper vs. Bright 
      .
    In the present case, payment was not to be made by the defendant, unless the voyage was performed; and in that event, 'within twenty days after the vessel’s arrival at Salem, or her port of discharge in the United States: Now the voyage * never was performed; the time never has arrived, [ * 453 ] when the defendant was to pay according to the letter of the condition ; for the vessel never did arrive within the United States. If, therefore, the right of action has never been suspended, the remedy is, and must forever be, since the contingency, upon which payment was to be made, can never arise. Without question, thé bond created a present debt; but the condition is part of the bond, and though it be in discharge only, yet no action could be maintained until the time should arrive when the condition, by the terms of it, might be performed. Although a bond with condition to pay in one year be a present debt, yet no action lies upon it until the year has elapsed. So here no action lies, unless the defendant omits to pay for twenty days after the vessel’s arrival within the United States. When do these twenty days begin to run ? Surely it will not be contended that the bond may be put in suit, when the time of payment by the condition has not arrived.
    But it will be said that the defendant has substantially received the benefit of the bottomry contract, and ought now to repay the plaintiff for his indemnity. To this it is apprehended a sufficient answer was given at the former argument, viz., that the money received by the defendant has been only in the nature of salvage; and that the plaintiff is not by law entitled to salvage. Suppose the ship, by the perils of the sea, had been completely wrecked and wholly unable to perform her voyage, though specifically remaining; would it be contended that the plaintiff was entitled to recover? The money now received by the defendant is quasi ex naufragio. Suppose the money received had been only one tenth of the value of the ship and cargo, yet, upon the principle maintained by the plaintiff’s counsel, an action would lie, and the defendant would then be in a worse condition than if the ship had been sunk in the ocean. Or else the right of action would be continually varying, as the amount received should change the equity of the case, and the plaintiff entitled to an apportionment according to such amount.
    The present contract is entire, and contains no such pro- [ * 454 ] vision ; and, by the general * law upon an entire contract, there can be no apportionment . So a condition cannot be in esse for part, and destroyed for the residue .
    
      Prescott.
    
    
      We contend seriously for the plaintiff in this case that there has been no loss within the condition of the bond. The penalty of the bond attaches, unless payment be made within twenty days after the arrival of the schooner, or unless a loss happen within the perils enumerated in the condition. Payment is not pretended. The defendant, therefore, to avoid this action, must show a loss in one of the ways described in the condition.
    It has been attempted to show', from authorities, that a capture and condemnation are within the meaning of perils of the seas; but in every case produced with that view, no other perils are mentioned ; while here others are specifically detailed, and cannot, therefore, be considered as included in the more general terms. The loss by enemies in this case was inserted, because actual war w'as expected at that time. Such a war never took place.
    The vessel was seized and condemned in the Vice-admiralty Court; the defendant interposed an appeal, and upon that appeal the decree of condemnation was reversed, and the vessel and cargo were ordered to be restored to the owner, and finally full compensation for all the damage sustained, was awarded and received. The detention was thus proved to be illegal, and the order of restitution by the Courtj f Appeals restored the defendant and all others concerned, to all their former rights. The proceedings in both courts are to be considered but as one and the same process The final' sentence of restoration relates back to the time of the original seizure, and, in contemplation of law, puts all parties into the same condition as before the wrong was done. This would be more apparent, though not more true, if the whole transaction had taken place in England. Had this vessel on her capture been carried into some port in England, condemned in the lower court, and upon an appeal restored, the whole might have passed in the space of two months, and the * voyage [ * 455 J would have been completed, almost without any sensible interruption. In such a case would not the plaintiff be entitled to his money on this bond ? The length of time spent in prosecuting an appeal from the West Indies to Great Britain cannot affect the legal or equitable rights and duties of these parties. The vessel was ordered to be restored: if that could not be done, com píete indemnity was to be given, which is tantamount to a restoration ; so that there can never be said to have been a loss. If there had been a final loss of this vessel and her cargo, the mariners would have lost their wages, and the owners their freight; but when the sentence of the lower court was reversed, these were restored to their original rights. It was not a revival of their right, for by the ultimate sentence it is shown that they always held the right : it was rather a revival of their remedy. While the matter was sul judice, neither could maintain an action. So here there has been no suspension of the right, but only of the remedy, which revived upon the removal of the impediment.
    We have thought the doctrine laid down in the case of Beal vs.' Thompson was decisive of the case at bar. The character of the detention was ascertained by the final event. There was a forcible seizure by a foreign prince, which was taken off upon a negotiation, by which the friendly relation of the two powers was preserved or restored ; the seamen afterwards demanded and recovered their wages. So, in the case at bar, war was expected, and vessels and cargoes were seized in consequence of that expectation, and in some instances condemned ; afterwards, upon negotiation, they were liberated and restored; and where that, in any case, was impossible, ample compensation was" received, as has been by the present defendant.
    The merits of this cause will distinctly appear, if, instead of a contract of bottomry, a policy of insurance is supposed, in which the plaintiff was the underwriter, and the defendant the assured. The only difference is, that in the case supposed, the assured advances the premium ; in the present case the lender risks his pre mium as well as the principal subject of the contract. Now, under the facts appearing here, could the defendant recover [ * 456 ] from the plaintiff, his underwriter, * as for a total loss ?
    It is true, in the case supposed, he might have abandoned during the detention, and thus have entitled himself to a total loss ; but then the plaintiff would afterwards have been completely made whole, when the circumstances arose which now appear. But such a detention as entitles an insured to abandon, does not discharge a contract of bottomry. In the latter case there must be a real total loss, and not merely a technical one .
    
      Dexter
    
    observed that this cause had been so long before the Court, and its points become so familiar, that it would be improper to occupy much more time in the discussion of it at the bar. But he must contend that there had been at no time a total loss of this vessel; and unless there had been, the plaintiff was entitled to recover. To constitute such a loss, a final condemnation is necessary. In case of an insurance, there could be no total loss from capture and condemnation, while an appeal from the decree of con demnation was pending, unless there were an abandonment. Then, where no abandonment lies, as in this case, such circumstances cannot constitute a total loss. Originally, the assured could not recover for a total loss, unless he could show the property irretrievably gone. When abandonment was introduced, to prevent the great mischiefs to underwriters from delay, the doctrine of a constructive total loss was introduced with it, and to such a loss abandonment is absolutely necessary. Abandonment having no place upon contracts of bottomry, the doctrine of a constructive or technical total loss cannot apply. This would seem to settle the. present question.
    If, as the defendant contends, there is no salvage in cases of bottomry, it would follow that he might have taken up on bottomry the whole value of his vessel and cargo, and in the events which have arisen here, he would receive just twice the value of his whole property.
    But we do not contend for salvage, which is the saving of a part. The defendant has received the full amount of his whole adventure. He has constructively received the identical property. [ * 457 ] It was adjudged to be restored to him, and * if the decree was carried into effect by the payment of money instead of a specific restitution, still it was executed, and in legal contemplation he became possessed of the very property which had been unlawfully taken from him.
    
      We are told that if we have a right to recover, still we cannot prevail in this action; but if assumpsit for money had and received is brought, we shall be told that we made a specific contract, that in an action upon that contract judgment had been against us, and that we had no right to abandon the contract, and sue for the same demand in a different form of action. The action of Cook vs. Jennings was upon a covenant, where the plaintiff was held to show a strict performance on his part: the case at bar is on a bond, and the onus is on the defendant; he must show himself discharged, or he must be held.
    We deny the contract to have been extinguished. It never attached until the final decree in the Admiralty.
    
      Story.
    
    In reply to the first objection of the plaintiff’s counsel, that there has been no loss within the intent of the instrument, we say the vessel and cargo are gone forever; and the voyage has been totally lost, and without our default. This constitutes a total loss according to all the authorities respecting bottomry. The perils are the same as are usually insured against in policies, and the same construction applies in case of a loss. I admit there must be a total loss ; but for what constitutes a total loss, we must refer to the cases upon insurance.
    If the plaintiff’s counsel are founded in their doctrine, that there can be no constructive total loss in a contract of bottomry, then if a single plank of the vessel arrive at the port of destination, the borrower is held to payment of his bond. Suppose, which is more direct to our case, that by storms the vessel is completely wrecked, and obliged to go into another port, and so much injured that she is unable to pursue her voyage; here the property specifically remains, yet will it be contended that upon such a state of facts the plaintiff could recover ? Suppose, during the pendency of judicial process, the vessel be sold or destroyed, and the cargo be consumed or perish, is there not a total loss of the specific * property ? Yet the counsel for the plaintiff are [ * 458 ] obliged in this case to resort to construction, to show that a loss, literally total, is by construction of law partial only. The fallacy of their principles is completely perceived by a bare statement of their questions.
    The true ground to decide in cases of bottomry, whether there be a total loss or not, is to ascertain whether the voyage be or be not lost; the totality of the loss of vessel relates to this, and this only. If the vessel specifically remain, but cannot, by the perils enumerated, perform the voyage, she is, as to all intents and purposes of the contract of bottomry, lost as much as if sunk in the sea.
    But it is said that by the reversal of the sentence, and the award of compensation, the postliminary right to the property revived, and it is as if there had been no capture. Admitting the general principle to be true, it does not affect the present case ; because, in the first place, the principle applies only where the property is specifically restored. In the present case, no such thing has happened : the vessel and cargo were sold under the admiralty decree, and are forever gone from the owner. But the property should not only have been specifically restored, in order to apply the principle of postliminium, but with it should have been restored the ability to perform the voyage; and it should have been actually performed (unless lost by the default of the defendant), before any right could accrue to the plaintiff under the bottomry bond.
    And the cases, which were cited for the plaintiff, fully support the doctrine here contended for. The case of Joyce vs. Williamson shows only that “ a capture, to have the effect of discharging the borrower, must be such a taking and detention, as would amount to a total loss in a case of insurance. A mere temporary detention will not discharge the borrower unless the voyage be thereby lost.” This is the language of Marshall on this very case ; and it is also the language of the Court in their decision. There the voyage was performed, though the vessel had been captured, and recaptured ; and was restored, upon payment of salvage, after the recapture. In the present case, the voyage was [ * 459 ] totally lost; and it is expressly decided that * even a detention, by which the voyage was totally lost, would discharge the borrower.
    In a literal sense the vessel was in our case totally lost, as well as the voyage ; and certainly there was a total loss, within the cases of insurance; which Lord Mansfield, in delivering the opinion of the Court in the case last referred to, says is all that is necessary. This shows that the plaintiff’s counsel are not well founded in the position that constructive total losses exist only in consequence of the right of abandonment, and are not applicable to contracts, under which by law no such right exists.
    The case of Beale vs. Thompson admits a similar reply. The voyage was performed, and the right of the seamen to recover their wages followed as a consequence of freight being earned. All the other cases cited are where the voyage was performed, and were considered either upon the footing of the original contract not being dissolved, or that a new contract was to be implied from the circumstances.
    As to the second objection, that there has been no loss by the perils enumerated in the instrument, Story said he had nothing to add beyond what was pressed on the former argument.
    
      The action was again continued nisi, and at the March term, 1808, in Suffolk, the following opinions were delivered ; according to which judgment was entered for the defendant as of this term.
    [The Chief Justice, having been of counsel in the cause, gave no opinion. Thatcher, J., was not present at either of the arguments being at each of those times holding the eastern circuit.]
    
      
      
        Marsh. 416, 651.—3 Esp. Rep 67.
    
    
      
      
        Marsh. 651.— Comb. 56.—Park,61.
    
    
      
      
        Pickering vs. Berkeley, 1 Roll. 154, cited 1 Show. 322, 323.—2 Roll. Abr. pl. 10, 248. Marsh. 418
    
    
      
       See 3 Bos & Pul. 414.
    
    
      
       3 Esp. Rep. 67.
    
    
      
      
        Park, 421 —Marsh. 652.
    
    
      
      
        Marsh. 483, 484, 493.—Park 66.—1 Rob Adm. Rep. 139.
    
    
      
      
        Marsh. 416, 422, 635. 651.—4 East’s Rep. 47. 51,559, 561.—3 Bos. & Pul. 410 412
    
    
      
       3 Bos. & Pul. 416, 424, 426.—4 East’s R. 47, 51,559, 560, 561.
    
    
      
      
        Park, 421, 66,423.—Marsh. 652, 483,494.—2 Black. Com. 458. n. 13.
    
    
      
       6 Term Rep. 320.—Salk. 65.
    
    
      
       7 Term R. 381.—6 Term. R. 320.—1 Bos. & Pul. 637.
    
    
      
       3 Bos. & Pul 431.—4 East's Rep 560.—4 Rob. Adm. Rep. 144.
    
    
      
      
        Marsh 416.
    
    
      
      
        Marsh. C52
    
    
      
       4 Rob. Adm. Rep. 143.—Friends, Bell.
      
    
    
      
      
        Com. Dig. Release, A. 2 Co. Lit. 264, b. note 209, 210—Com. Dig. Administration, B. 5, cites Wentw. Ex. 45.—Cro. Car. 372.—1 Bos. & Pul. 630.—11 Vin. Abr. Extinguishment, P. 7.N. 20.—Owen, 21.—Cro. Eliz. 469.— Moor, 413, pl. 569.—12 Mod 400.
    
    
      
       7 Term R. 381
    
    
      
      
        Bos. & Pul. 634.
    
    
      
       6 Term R. 320
    
    
      
       1 Brownl. 21, cited 7 Term R. 385.
    
    
      
      
        Countess of Plymouth vs. Throgmorton, 3 Mod. 153.—1 Salk. 65, S. C.
    
    
      
       19 Vin. Abr. Tit. Revive, A. 5
    
    
      
      
        Joyce vs. Williamson, Marsh. 652
    
   Parker, J.

[After reciting the substance of the pleadings.] These pleadings present to us the general question, whether, under the facts disclosed thereby, the plaintiff can recover in this action; anc to decide this question, we must inquire, 1st. Whether the facts alleged in the plea are a sufficient bar to the action, if unanswered; and if they are, 2. Whether the conclusion from those facts is sufficiently avoided by the plaintiff’s replication.

* A satisfactory construction of the condition of the bond [ * 460 ] is not unattended with difficulty. Whether it was the intention of the parties that the payment of the money borrowed, with marine interest, should depend upon a literal performance of the voyage, and a return of the vessel to some port within the commonwealth, or whether, if she never returned, but was not lost by one of the misfortunes specified in the condition, viz. “ perils of the seas, fire, or enemies of the United States,” the money was to be paid, are questions about which I have been a long time in doubt.

On the one hand, it would seem, that if a return of the vessel was the fact upon which the right of the plaintiff to demand his money was to depend, the subsequent specification of accidents, by which she might be lost, was unnecessary; and on the other hand, the nature of this contract, and the common understanding, that the duty of an obligee to pay, depended upon a safe termination of his voyage, seem to forbid a restriction of the causes of his discharge to those which are enumerated, provided there was an eventual nonperformance of the voyage, without the fault of the obligor.

My mind, however, is at last satisfied that the specification of the perils, by which the vessel might be lost, does not affect the former part of the condition, and that a substantial performance of the voyage by the vessel is necessary to entitle the plaintiff to recover upon this contract. But even if it were required of the defendant, in order to acquit himself of this bond, to show that there was a loss in one of the ways mentioned in the condition, I think the facts in the case bring it within one of the stipulated causes of loss.

Whether the terms perils of the seas comprehend every species of marine accident, when accidents of several sorts are mentioned in addition to perils of the seas, I shall not undertake to decide; but I am satisfied that the taking, as alleged in the plea in bar, is, to all legal intents, a capture by the enemies of the United States; and if it had been so alleged by the defendant, the facts would have supnorted his plea. It is so understood in questions of insurance; and the doctrine is fully supported by the English writers on insurance, and by continental jurists of high authority.

[ * 461 ] *1 am, therefore, of opinion that the plea in bar is a sufficient answer to the plaintiff’s action", unless it is avoided by the facts set forth in the replication; and whether it is so avoided or not, is the second question, which it is necessary to consider.

By the replication it appears that the sentence of condemnation was reversed, and that the value of the vessel, cargo, and freight, in money, with interest, was awarded to the defendant, and has been received by him before the commencement of this action. It is contended by the plaintiff, that under these circumstances there was no loss of the vessel, and that, therefore, as the money secured by the bond has not been paid, the bond is forfeited; and he likens it to cases of insurance, in which, if a restoration takes place before abandonment, the insured cannot recover for a total loss.

It is true that contracts of bottomry are in many respects gov erned by the same principles as contracts of insurance ; it is also true that in other respects' they are essentially different. In order to avoid a bottomry bond on the ground of loss of the vessel, the loss must be total without abandonment. Circumstances, which would enable an insured to recover after abandonment, are not alone sufficient to enable a borrower on bottomry to avoid his contract ; such as a defeat of his voyage, or temporary restraint of his vessel; but On return of his vessel, whatever may have been the events of the voyage, he is held to pay the money borrowed.

The vessel in this case was captured as prize, was condemned, and never returned to her owners, but probably was destroyed in consequence of her detention by the captors. Here was a total loss, which discharged the defendant from his bond. But it is said that the defendant has received her value, so that virtually there was no loss. In equity, the plaintiff’s case is undoubtedly very strong; and I can see no principle of mercantile honor, upon which the money can be withheld by the defendant; but we must decide upon established legal principles, and are not at liberty to wander into the field of equity, to do justice to the parties. The question with us is, whether any event, within the condition of the bond, has happened, whereby the obligor is discharged from his contract. The [ * 462 ] facts relied upon by the plaintiff show that * such event did happen, viz. the capture and condemnation of the vessel; and further, they show that she never did return. And although the defendant has recovered her full value, yet I cannot say that there was a performance of the voyage within the meaning of the condition of the bond.

The case of Cook vs. Jennings, cited at the bar, shows that a strict performance of a condition is required to enable one party to enforce his contract against the other. In that case, the acceptance of the deals by the party, for whom they were transported, was held not to entitle the owner of the ship to freight, because they were never delivered at the place stipulated in the covenant. This is not a stronger case in equity than that was; yet there the Court felt bound to decide on strict legal principles against the manifest justice of the claim to compensation.

To this purpose also may be cited the case of Little & Al. vs. Holland , in which it was decided, in an action upon a covenant to build two houses by a certain day, that the covenant was not performed, by showing, that by the agreement of the parties the time had been enlarged, and that the houses were finished within the enlarged time. The same principle is established in the case of Brown vs. Goodman, contained in a note to the case last cited, where, in an action upon an arbitration bond, in which the time for making the award was stated, an allegation was made that the parties had mutually agreed upon an enlargement of the time, within which enlarged time the award was made, and non-performance alleged as a breach: to this the defendant demurred, and judgment was given for him, after argument. Lord Kenyon said the question was not then to be discussed whether the plaintiff had not some remedy, but whether his remedy lay upon the bond, to determine which they must look to the bond; and there it appeared the award was to be binding, if made within a certain time; but that could never extend the penalty to an award made after that time under a new agreement. To which the other judges assented.

I have been unable, with a great desire to support the plaintiff’s claim, to find any case, in which a bottomry contract, *as such, has been enforced, when the vessel, which was [ * 463 ] the subject of it, did not reach her destined port of delivery. In Joyce vs. Williamson [Marshall, 652], the 'decision was founded upon the ultimate successful termination of the voyage, the vessel having arrived at the stipulated port in safety, although she had met with a temporary detention. So, in this case, had the schooner, after being captured and carried in, been restored, and found her way home, and earned her freight, the contract would have 'emained in force; but, on the contrary, she never did return. but perished, and a compensation in money has been paid for her Whether this compensation is equally advantageous to the defendant as an uninterrupted prosecution and successful termination of the voyage would have been, we have no means of ascertaining.

A decision of this case has been delayed, from a strong desire entertained by those of the Court, who doubted of the plaintiff’s right to recover, to meet with some authorities which would justify a contrary opinion, and from an apprehension that the plaintiff would lose money so equitably due, unless he recovered it in this action. The research, which I have been able to make, has satisfied me that the plaintiff has lost his remedy upon the bond; but that in another action substantial justice may be done him. If it be true that the lender on bottomry is entitled to the effects saved in case of a loss, there can be no doubt that those effects having come into the hands of the defendant, he is accountable for them to the plaintiff.

It is true that Lord Mansfield has said, and after him Lord Kenyon, that by the law of England, in contracts of bottomry, there is no average or salvage; but this opinion was not given with reference to any question immediately before them, and it is doubted by Parle and Marshall.

Upon examining the treatises of Emerigon, Pothier, and Valin, I think there can be no doubt, that it is considered in France as a principle of marine law, that the lender has a claim upon the vessel or effects saved, upon whichsoever the risk was taken. By those writers it will appear that, although a contract of bottomry is extinguished by any of the marine perils upon which the loan [ * 464 ] has been placed, yet that the lender * can pursue the effects saved, wherever they may be, and may maintain an action against the borrower for them, provided they come into his hands.

Here the plaintiff had an interest in the vessel to the value of the sum loaned, with the marine interest which had accrued at the time of the capture. Compensation has been made in money, which must enure to those who have the interest or property. The defendant has received it, and I can see no reason why, in an action for money had and received, he will not be held to restore it to the plaintiff This opinion, however, will not prevent a due examination, should the defendant unreasonably persist in withholding what appears so equitably due; but it is intimated with a hope that an investigation by the defendant’s counsel will end in the payment of the money, and the prevention of future litigation.

Sewall, J.

This general question arises upon the pleadings in this case; whether, considering all the facts alleged and admitted, the defendant is liable in this action for the loan on bottomry disclosed by the condition of his bond ?

For the plaintiff it is contended that the capture and other events alleged in the defendant’s plea were not a discharge, upon the terms of this contract; or that the compensation, which has been made to the defendant for the loss of his vessel and voyage, restored the plaintiff to his demand for the money lent, and enables him to maintain this action.

A loss by enemies of the United States is one of the risks expressly undertaken by the plaintiff, and avoids the bond in this action, by the terms of the condition. The loss stated in the defendant’s plea, is a capture in the course of the voyage, and a condemnation as prize of the vessel, upon which this loan was made.

Taking as prize is in all cases an act of hostility ; and according to Marshall, in his treatise of insurance, if a neutral ship be arrested at sea, and carried into a port belonging to one of the belligerent powers, under pretence that she belongs to the enemy, or that she is laden with enemy’s goods, this must be considered a capture, because it is done as an act of hostility; and the ship’s being after wards restored will not change that, which was originally a capture, into *a detention of princes. And for this [ * 465 __ doctrine he cites the authority of Emerigon .

The present case is stronger than that supposed by Marshall; the arrest is proved by the subsequent condemnation to have been a taking as prize. If, however, it were distinguishable from a capture by enemies, it is then a peril not specified, and must be included, I think, in the words perils of the sea, which are likewise undertaken by the plaintiff. In the case of Pickering vs. Berkeley, it was certified by merchants, and confirmed by the decision of the Court, that perils of the sea include a capture by a man-of-war unknown These words, in a large and general sense, include all the accidents and misfortunes to which those engaged in maritime adventures are exposed.

This construction is further justified, when we consider the contract in question as a contract of bottomry, which ex vi termini subjects the lender to all the usual risks undertaken by insurers, where there is no particular exception; and especially as by another and corresponding part of the condition, the payment of the money oorrowed is to depend upon the performance of the voyage upon which the oan was made.

It is averred by the defendant, and not contradicted by the plaintiff, that the vessel never returned to Salem, or any port of discharge; and it has not been pretended that this event was chargeable to the fault or neglect of the borrower, or happened otherwise than by a vis major, a casus fortuitas .

The right of the plaintiff to maintain this action, if he has any, must be derived from the subsequent events averred on his part; the reversal of the condemnation and decree of restoration, with the award of compensation for his schooner, cargo, and freight, and for the loss of his voyage, which it is admitted the defendant has received.

In bottomry and respondentia bonds a loss by a capture, which is a mere temporary taking, and which does not occasion a total loss of the property or of the voyage upon which the loan is [ * 466 ] made, will not defeat the demand of the lender. * This was determined in the case of Joyce vs. Williamson; but this decision was placed by Lord Mansfield expressly upon the ground, “ that the voyage in that case was not lost; for the defendant pursued it and earned his freight” .

In the report of this decision Lord Mansfield is stated to have said that, by the law of England, there is neither average nor salvage upon a bottomry bond. Mr. Parlc cxtes this opinion as novel; and Sergeant Marshall doubts whether his lordship had the authority of any decided case for the position. If the position be correct, and to be understood as a denial of all remedy for salvage to the lender upon a bottomry bond, on any event of loss with salvage, the common law has not, in this respect, adopted the regulations of the marine law, as it is observed and practised upon by the other commercial nations of Europe. But if it may be understood as a denial of any remedy upon the original contract, the law of England agrees with the law of France; and the rule is analogous to what is observed respecting other maritime contracts.

This is the rule of the common law in the case of seamen’s wages. By the loss of the vessel or voyage, their demand upon the master or owner may be extinct; but they have a remedy upon the salvage ; and the action may be maintained against the master or owner, when the salvage comes into their hands. The case of Cook vs. Jennings was an action of covenant upon a charter-party to recover the freight of certain goods, which the plaintiff had undertaken to carry to Liverpool, to be paid on delivery there. The vessel having been wrecked in her passage, and become incapable of proceeding, the goods were unladed and delivered to the freighters at a port where the vessel was taken to refit, and were there accepted by them. The Court of King’s Bench decided against the action; and Justice Lawrence, in delivering his opinion, observed that the acceptance of the goods by the freighters might be evidence of a new contract (to pay freight for the goods pro rata itineris) ; but here the plaintiff had resorted to the original agreement, under which the defendant only engaged to pay in the event of the ship’s arrival at Liverpool. '

* The difference of opinion among the members of the [ * 467 ] Court upon this case has led me to examine with some care Emerigon’s treatise of contracts on the general adventure, as I construe Contracts a la grosse avanture, a term comprising contracts of respondentia and bottomry; considered as subject to the same rules in every respect.

I have recollected from this treatise the following observations, which appeared to me applicable to the case at bar in a general view of it.

Contracts upon the general adventure may be avoided in two ways, which are to be distinguished. One is, when the contract has in it some objectionable circumstance or defect, which at its origin prevents its legal existence and validity; and the other is, when the contract becomes extinct, expires, or is avoided by a loss of the effects upon which the loan was made. In this last case, the contract, considered in itself, remains substantially unaltered. The borrower is discharged from his obligation, the contract being reduced to the value of the salvage. This is the effect of a condition discharging the borrower, who is liable for the principal loan, and the marine interest, in the event only of a performance of the voyage. It may be said that, in many respects, this avoidance of the contract has the same operation and effect, as an abandonment in a case of insurance. It is unquestionable that the obligation is extinct, if the vessel is lost in the voyage. Such is the nature of the contract upon the general adventure, that if the effects, upon which the loan is made, be lost by misfortune, the contract is deprived of its effect, and the lender can demand nothing. For this he cites the 11th article of the French ordinance, with Valin's Commentary; and he adds from the same author, that this is also the common law of the European nations. After other observations to the same purpose, he adds, the result is, that by an inevitable misfortune, the personal action direct against the borrower is extinct, and the lender retains only a right to a real action (in the language of our jurisprudence an action in rem) upon the salvage from the wr,'ck. The lender may recover from the salvage his loan and matine interest, if the salvage should be adequate to these demands-but if inadequate, he will have no further remedy against | * 468 ] any person. *To be discharged from his engagement, the borrower is not holden to an express abandonment. The inevitable misfortune discharges him ipso jure from any personal action arising upon the contract. All the operations subsequent to the misfortune concern principally the lender, whose right to any action against the borrower ceases, unless he should himself become possessed of the salvage, or be chargeable with some misconduct .

Upon these authorities, and because I cannot perceive that a decree of restoration, or an award of compensation, which never enabled the borrower to perform the voyage upon which the loan was made, is to any purpose within the condition of this bond, a substitute for his vessel or voyage, my opinion is against this action. The replication is, I think, bad and insufficient in law. The compensation received by the borrower, the defendant may comprise a salvage, for which he is accountable to the lender, the plaintiff; but a demand of that nature, if it is recoverable, must be maintained in another form of action.

Sedgwick, J.

This is an action of debt brought on a bottomry bond, dated November 25th, 1793, in the penal sum of £300. By the condition it appears that the defendant borrowed of the plaintiff £150, on the bottom of the schooner Charming Sally, bound on a voyage from Salem to one or more ports in the West Indies, and from thence to any port or ports whatsoever, and from thence back to Salem, or port of discharge in this commonwealth. The bond is to be void on the happening of either of two events, which are expressed, viz., “ If the schooner shall perform the said intended voyage or voyages, and the said George (the defendant), his heirs, &c., shall and do well and truly pay unto the said John (the plaintiff), his executors, &c., the full sum of £150, together with three per cent, per month, for interest and adventure from the date hereof until this bond is discharged, and within twenty days next after the said schooner shall arrive at Salem, or port of discharge in this commonwealth ; or in case said schooner shall be lost through perils of the seas, or by fire, or the enemies of the United States, while she is performing the said voyage or voyages.”

[ * 469 ] *To discharge the defendant, therefore, from the penalty of the bond, there must have been either a payment, as expressed in the condition; or the schooner must have been lost by the perils of the seas, or by fire, or by the enemies of the United States. The money was not paid; nor was the schooner lost by the perils of the seas, or by fire.

These observations present the only question in the case, viz., Was the schooner lost by any acts of the enemies of the United States, while she was performing her voyage ?

Without particularizing what is stated by one party and the other in these pleadings, it appears that the schooner, while prosecuting her voyage, was captured by certain subjects of the king of Great Britain, acting under his authority, and condemned as lawful prize, against the will and without the fault of the defendant; and that she has never returned to Salem, or any port in the commonwealth; that this condemnation, for what cause does not appear, was in a Vice-admiralty Court, in the island of St. Christopher’s; that from this decree of condemnation there was an appeal to the lords commissioners of appeals in prize causes in England, by whom the decree of condemnation was reversed ; and the defendant has received -full compensation, not only “ jfor his schooner and her freight," but also for all “ his goods and merchandise ” on board. Do these facts disclose a loss of the schooner by the enemies of the United States ?

I should much doubt whether the defendant’s plea in bar is suf ficiently particular; the whole consisting only in the most general allegations that the schooner was captured by the subjects of the king of Great Britain, acting under his authority, and that she was condemned, not stating where, or by whom, as lawful prize, against the will, and without the fault of the defendant. But as no objection has been made on this account, and the case has been argued on its merits, upon them I shall give my opinion. And here 1 cannot omit to observe, that it is impossible for the mind to doubt with which of these parties the justice of the case rests. The defendant has received and now holds the plaintiff’s money. With a good conscience he certainly cannot * retain it; [ * 47 O ] and Tconfess that I should exceedingly regret if he was authorized to do it by the positive rules of law.

I have said that the only question presented, in this case, to the decision of the Court, is, whether the schooner was lost by any acts of the enemies of the United States. For, admitting that in a marine contract, where the only exception is perils of the sea, a capture by “ a man-of-war unknown ” is within that exception , yet it does not follow that in such a case as the present, where the events contemplated are perils of the sea, fire and enemies of the United States," that a capture, other than that of the enemies of the United States, is within the contract. For when the obligee, as in this case, assumes the risk of the acts of the enemies of the United, States, detention and capture by them; all detention and capture by others is excluded, according to the maxim, Expressio unius est exclusio alterius.

Here nothing is shown to the Court, from which we may conclude that the capture was by the enemies of the United States.” All that is said in the plea is, that the schooner was “ captured by certain subjects of the king of Great Britain, acting under his authority, and condemned as lawful prize, against the will, and without the fault of the defendant.” Now, all this may be very true, and yet the loss be in no sense a loss by the “ enemies of the United States.” The capture and condemnation might have taken place, perfectly consistent with the allegations in the plea, for causes, for which no one can suppose that it was the intention of this contract, that the plaintiff should risk his money; such, for instance, as smuggling against the revenue laws of Great Britain. For in that case the schooner might have been “ captured by the subjects of the king of Great Britain, acting under his authority, and condemned against the will and without the fault of the defendant.” For it is no fault, in a citizen of the United States, not to respect the revenue laws of a foreign country . Such a case would have verified every allegation of the defendant’s plea, and yet have been deficient in showing that the loss was by the enemies of the [ * 471 ] * United States. The Court is not informed that Great Britain, at the time of the capture, was an enemy of the United States; such in fact was not the case. It seems to me, therefore, that here is a fatal defect in the plea. But even if this difficulty could be surmounted, I am of opinion that the case, on principles of law and justice, would be with the plaintiff.

In every contract, the first and most important consideration is to discover the intention of the parties; and that intention in all cases, if consistent with the rules of law, is to guide the court in the judgment which they pronounce. Now, it requires no process of reasoning to satisfy any intelligent mind, that it never could have been the intention of these parties that the plaintiff should accommodate the defendant with money, to be employed according to his pleasure; that after he had thus employed it, and received full compensation ” for the subject, in which it had been invested, and for all his property related to it (which has happened here ; for the defendant has received full compensation for his schooner, and her fieight, and for all his goods and merchandise on board), it could never have been the intention that, after this, the defendant should rt sist the plaintiff’s demand for repayment.

Bottomry is a contract in nature of a mortgage of a ship, )ii which the owner borrows money, to enable him to fit out the ship, or to purchase a cargo for a voyage proposed; and he pledges the hull or bottom of the ship, pars pro toto, as security for the repayment ; and it is stipulated, that if the ship should be lost 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 legal rate of interest .

Although the contract of bottomry and that of insurance are in many particulars dissimilar, yet there is a perfect likeness in some others. In insurance, for instance, the insurer is bound to indemnify for all losses which happen by perils against which he insures In bottomry, the lender loses his money when the ship is lost by any of those perils which are * expressed in the [ * 472 ] contract . And in both, the rights and duties of the parties depend on the meaning expressed in the contract. There is not an adjudged case, where, from the same or tantamount words made use of, in a bottomry contract, the lender has been adjudged to have lost his money, where the insurer has not been holden to indemnify the assured, upon the happening of the same events; nor is there a single dictum, that I have been able to find, in any of the books to that purpose.

The contract of bottomry, like that of insurance, is merely ex-ecutory. If the risk do not commence, the contract, as a bottomry contract, never takes effect; but is converted into a simple loan . If there be a deviation during the course of the voyage, the plaintiff will be entitled to recover upon his contract . If the voyage by order of the owners be changed, or if the loss happen by the barratry of the master, or by the misconduct of the merchant, the borrower will not be discharged . Si infortunium vel naufragium, ex culpa debitoris processerit, tune creditor non tenetur de periculo et damna in quad incurritur, ex culpa vehentis out alterius . If the ship be forfeited for smuggling, to which the lender did not consent, and in which he had no concern, he is not liable for the loss . Any misfortune, before the commencement," and after the end of the risk, falls on the borrower. If the voyage be described in the contract, but the time of the commencement and the end of the risk be not specified, the risk, as to the ship, shall commence from the time she sets sail, and continue until she anchors in safety, at her port of destination . These principles I have mentioned to show, as well the analogy between bottomry and insurance contracts as to the losses which fall on the lender and insurer, as the genera, principles which have governed in construing them. In both, the rule of decision has been the meaning of the contract. [ * 478 ] * For the same purpose I will cite one more case, which is reported by Viner from a MS. note .

Money was lent on bottomry, with a condition that if the ship, which was bound to the East Indies, should return to London within thirty-six months, or if she should not return within that time, or should not be taken or lost within that time, the money to be paid, &c. The ship was detained at Surat in-India by an embargo laid by the Mogul, till after the 36 months had elapsed, and on her return home was taken; and so the bond was forfeited. But there being no fault in the master, and the voyage being thus delayed by inevitable accident, the borrower brought his bill to be relieved against the penalty of the bond. But the Lord Chancellor Harcourt said. “ I cannot relieve against the express agreement of the parties.”

With these principles to guide us, let us recur to the case before us. According to the express agreement of the parties, the money is to be paid in any event, unless the schooner should be lost.

Both Park and Marshall, in treating of bottomry and respondentia, lay down the proposition in the most broad and unqualified terms, that nothing short of a total loss will excuse the borrower; and the case, which they cite and report with very little variation, goes the full length of supporting them in their position .

The condition in that case was, that if, upon the safe arrival of the ship, the defendant should pay the plaintiff the money lent, with the stipulated interest; or if the ship should be lost, be taken by the enemy, miscarry, or be cast away, the bond to be void. The ship “ was taken by the enemy,” detained a month in his possession, then recaptured and restored, after the payment of salvage, by a decree of a court of admiralty.

This case, according to the words of the contract, seems stronger than that under consideration. In that the plaintiff agrees to hazard his money on the event of the vessel being “ taken by the [ * 474 ] enemy; ” in this, only in the event that the * ship was lost by some of the means expressed. Yet Lord Mansfield, in delivering the opinion of the court, according to Marshall, says, “ Upon consideration, we are all of opinion that a taking, within this condition, does not mean a temporary taking, which is only an obstruction, which may last for a day; it must be sum a talcing as, between insurer and insured, would amount to a total loss.” And the words of Lord Mansfield, as reported by Park, are of the same import.

If in a case circumstanced as that of Joyce vs. Williamson, where the plaintiff was to lose his money, “ if the ship was taken by the enemy,” a temporary capture by the enemy is not within the mean ing; surely in a case circumstanced as this is, where the loss of the money is made to depend on the loss of the vessel, by perils of the sea, fire, or enemies,” a capture, under what pretence we know not, but where the Admiralty, in the final resort, has decreed restitution, and in consequence thereof the defendant has received full compensation for his vessel and every subject related to the voyage, it cannot consist with justice or any sound principle of law, that, the loss should be thrown upon the plaintiff. No one can pretend that this would amount, in a contract of insurance, to a total loss ; and it therefore results, if the Court of King’s Bench was right in the case of Joyce vs. Williamson, that the facts do not bring this case within the meaning of the condition.

Of the nature and legal effects of a capture, which will apply to this case, Lord Ellenborough, in delivering the unanimous opinion of the Court of King’s Bench in the case of Beale vs. Thompson, has expressed with accuracy the true principles of law. “ Seizure,” says re, “ even hostile seizure, is not necessarily capture, though such is its usual and probable result. The ultimate act or adjudication of the state, by which the seizure has been made, assigns its proper and conclusive quality and denomination to its own original proceeding. If it condemn in such a case, it is a capture ab initia ; if it award restitution, as an act of justice, as the order of the 5th of June, 1801, expressly does, it pronounces upon its own act as not being a valid act of capture, but as an act of temporary seizure and detention * upon grounds not war- [ # 475 ] ranting the condemnation of the property, or the dealing with it as captured.” “ Having stated that the acts in question, although originally of a hostile tendency and aspect, do not amount, according to the result of them, to a case of capture, they cannot, I conceive, of course, have the effects of capture properly attributed to them.” And Lord Alvanly, while the same case was in the Court of Common Pl^as, was manifestly of the same opinion. Ac cording to these opinions, which I deem to be sound law, granting that instead of a risk, which should occasion the loss of the schooner, as is this case, that the plaintiff had assumed the risk of capture by enemies, and that the court could presume that this was such a case of capture, the case would not be brought within the meaning o" the contract; for the plaintiff was not to lose his money, unless the schooner should be lost, which clearly was not the case.

In every view in which I have been able to consider the subject, I think judgment ought to be rendered for the plaintiff.

I regret exceedingly a final difference of opinion in this case; but it has become unavoidable. It has been twice argued before the judges now present. There is one other judge who can sit in the case; but it has been thought by us, unanimously, that it is inexpedient to have it argued before him, as the consequence would be, either an equal division of the Court, and so no judgment could be given, or the majority would be increased; and we all think that it is better that a judgment may be now given, as the majority of the Court are of opinion that the plaintiff is, in another form of action, capable of obtaining that justice, to which we all think him undoubtedly entitled .

Plaintiff’s replication adjudged bad. 
      
       3 Term R. 590.
     
      
      
        Marsh. 435.—Emerig. tom. 1, 537.
     
      
      
        Roccus de Assecurat. not. 54, 65.
     
      
      
        Park, 481.
     
      
      
        Emerig de Contracts a la Grosse, ch. 11.
     
      
      
        2 Roll. Abr. 248.—Style, 132.—1 Show. 322. Jeffrey vs. Legendra.
      
     
      
      
        Planche & Al. vs. Fletcher, Doug. 238.
     
      
      
        Marshall, 632.—Park, 410.
     
      
      
        Marshall, 635. 651.—Park, 421.
     
      
       1 Vern. 263
     
      
      
        Skin. 152.
     
      
      
        Marshall, 654.
     
      
      
        Roccus de navib. n. 51.
     
      
      
        Marshall, 654.
     
      
      
        Marshall, 656, 657
     
      
       4 Vin. Abr. 281. Ingleden vs. Foster.
      
     
      
      
        Marshall, 562.—Park, 421, 422, Joyce vs. Williamson.
      
     
      
      
        [Thomson vs. Roy.—Ex Ass. Co. 1 M & S. 31.—Ed.]
     
      
       Judge Thatcher was not present at the argument or the decision of this case
     
      
       [Vide Appleton vs. Crowninshield, 8 Mass. 340.—Ed.]
     