
    Case No. 2,828.
    CLARK v. The LEOPARD.
    [4 Law Rep. 153.]
    District Court, D. Massachusetts.
    July 7, 1841.
    Bottomry Bonds to Consignee of Vessel.
    1. Under the circumstances of this case, the court refused to enforce certain bottomry bonds.
    [2. Where the consignee of a vessel employs her as he sees fit, without accounting for her earnings, he cannot enforce bonds on the vessel taken by him for wages, port charges, insurance, and the like.]
    This was a libel filed for the recovery of several sums of money, alleged to have been advanced at different times by the libel-lant in the years 1S34 and 1S35, and claimed to be secured by different instruments, designated as bottomry bonds. The Ocean Insurance Company appeared as claimant, under protest, as owners of a bottomry bond executed by P. & C. Flint & Co., on the 20th July, 1833, on a loan of $S,000, and excepted to the jurisdiction of the court, on the ground that the bonds stated in the libel were not bottomry bonds, (1) inasmuch as the respective masters of the bark had bound themselves personally and at all events for the repayment of the money; and (2) because the lender took upon himself no maritime risks, although there was a stipulation for maritime interest in ihe different instruments. A defensive allegation was also made, that if the instruments were to be considered as of the character of bottomry bonds, they ought not to have priority over the bond of the claimant, because tlie libellant bad wrongfully taken possession of tbe bark, and tbe expenses, &e., to secure wbicb tbe bonds articled were taken, arose during a wrongful detention. There was much evidence in tbe case, but tbe most important of it disclosed tbe following facts: In January, 1S34, an arrangement was made in Boston, between tbe Flints, Clark, and S. Austin, agent for •George Wildes & Co., to send tbe bark to tbe Havana, to Clark’s consignment, to be there loaded for Cowes and a market In February afterwards the Flints stopped payment, and made an assignment of their property to Cartwright & Train, for tbe benefit of their creditors: the latter confirmed tbe arrangement about the bark, but Clark declined to become a party to the assignment; sent out to tbe Havana to countermand tbe loading of the bark, and claimed to bold her as security, or rather, as be termed it, to “embargo her,” for the amount due to him from Flint & Co. Both tbe assignees and tbe Ocean Insurance Company sent out powers to tbe Havana to demand there tbe restoration of tbe bark, but were unsuccessful in tbe object. Those of the bonds articled in tbe libel were executed at Havana during tbe detention, one by tbe master originally appointed, tbe others by masters appointed under tbe direction of Clark. It appeared, that after some detention, tbe bark was despatched by Clark on various voyages, and without crediting the freights earned against the expenses, be passed them to the credit side of a general account with tbe Flints, and debited them with a loss on cargo upon one of the voyages. Tbe bonds were taken by bis direction, so as to include wages and all port charges, with insurance, &c. Eventually tbe bark was sent to Antwerp, where a fourth bond of similar character was executed, and from that port she departed for and arrived at Montevideo, •where, after legal proceedings of many months’ duration, tbe bark was delivered up by tbe tribunals to tbe agents •of tbe assignees. To cover tbe expenses of these last proceedings, a fifth bond was •executed, under wbicb the vessel returned to Boston in tbe spring of 1S37. No sanction to tbe doings of Clark appeared to have been given at any time by the Flints, the assignees, or tbe insurance company.
    Tbe case was argued at much length more than a year ago, and has since been retained under advisement.
    Mr. Washburn, for libellant.
    Aylwin & Paine, for claimant
   DAVIS, District Judge,

now delivered his opinion. After remarking that tbe case was peculiar, and having much in tbe various transactions that was strange, be proceeded shortly to recapitulate tbe facts. Passing over tbe exceptions taken to tbe jurisdiction, and tbe point raised, whether tbe libellant was entitled to any relief either in a court of law or equity, be held that Clark, having abandoned bis character of consignee, bad placed himself in a position that did not permit tbe court to enforce tbe instruments articled as bottomry bonds. He gave up tbe relation of consignee, in wbicb, under proper circumstances, a bond might be taken to himself, and chose to employ the vessel as be saw fit, without accounting for the earnings. It was impossible that these bonds could be sustained here, whatever might be done in any other jurisdiction. The judge then declared that he must dismiss tbe libel with costs to the claimants.  