
    John Appleton versus George Crowninshield.
    Money was lent on a bottomry bond, with condition to be void on payment of the sum borrowed, with the stipulated marine interest, within twenty days after the arrival of the vessel at her port of discharge in this commonwealth; or if she should be lost through the perils of the seas, or by fire, or by the enemies of the United States, while performing the intended voyage. The vessel was captured by the British on her return voyage, and condemned in the Vice-Admiralty Court as prize. On an appeal the decree of condemnation was reversed, and restoration ordered. And afterwards the commissioners, Under the treaty of 1794, awarded to the owner the value of his vessel and freight, with interest. In an action of assumpsit for money had and received by the lender against the owner, it was held that he was entitled to recover the sum lent and the interest thereof received by the owner under the award of the commis sioners.
    In this action, which was assumpsit for money had and received to the use of the plaintiff, the parties agreed to the following statement of facts, on which judgment was to be rendered, viz.: — That on the 25th of November, 1793, the defendant was owner of the schooner Charming Sally, whereof Richard Crowninshield was master, then lying in the harbor of Salem, and bound on a voyage to the West Indies ; and that the defendant then and there borrowed and received of the plaintiff one hundred and fifty pounds on bottomry, upon the bottom of the said schooner, and executed and delivered to the plaintiff the defendant’s bond in the penal sum of three hundred pounds, with a condition thereto in these words, viz.: —
    
      “ The condition of this obligation is such, that 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 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 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 unto-the said John, his lawful attorney, his heirs, executors, administrators, or assigns, the full sum of one hundred and fifty pounds, lawful money of the commonwealth of Massachusetts, together with three per cent, per month for interest and adventure from the date hereof until the 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 the 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 no effect; but otherwise shall be and remain of full force, strength, and virtue.”
    And afterwards, on the 1st day of December, in the same year, the said schooner sailed from Salem aforesaid, with a cargo of merchandise on board, belonging to the defendant, upon the voyage described in said condition to said bond, and the said schooner arrived in safety, and without deviation, at her destined port, viz., in the island of Guadaloupe, and there the said cargo was delivered, received, and disposed of, and with the proceeds thereof a return cargo was purchased and laden on board of said schooner, and therewith said schooner afterwards sailed for said Salem, and in prosecution of said voyage, being the voyage described in said condition, the said schooner, with her said cargo, was captured by certain subjects of the king of Great Britain, acting under his authority, and carried to the island of St. Christopher’s, and in the Vice-Admiralty Court there was condemned as lawful prize, against the will and without the default of the defendant; so that the said schoon er never returned to Salem aforesaid, nor to her port of discharge in this commonwealth, nor hath said schooner at any time since said condemnation specifically come to * the hands or possession of the defendant, or to his use. An appeal was interposed by the defendant from the said sentence of said Vice-Admiralty Court to the lords commissioners of appeals in prize causes in England, who reversed said sentence of condemnation of said vessel and cargo, and decreed and ordered a restitution of said schooner to the defendant, and that afterwards the commissioners, appointed pursuant to the seventh article of the treaty of amity, commerce, and navigation between his Britannic majesty and the United States of America, did award to the defendant the sum of two thousand dollars, as compensation for said schooner, and five hundred and sixty dollars for the freight thereof; which sums, it is agreed, were full compensation for said schooner and the freight thereof for said voyage, and also lawful interest for the same sums; and afterwards the defendant received the aforesaid sums of two .housand dollars and five hundred and sixty dollars of the British government, and interest thereon, from the said condemnation of the said schooner and cargo to the payment of the same respectively by the British government: afterwards the plaintiff demanded of the defendant the money loaned to him as aforesaid, with the interest thereof, and the defendant refused to pay the same. It is further agreed that an action was commenced on the said bond by the plaintiff against the defendant, upon which action judgment was rendered in the defendant’s favor, and a copy of the record in that action is to be considered as in the case.
    
    Upon these facts the cause was argued by Dexter and Prescott for the plaintiff, and Story for the defendant, partly at the last November term in this county, and partly at the last March term in Suffolk.
    
    
      Prescott.
    
    In support of this action the plaintiff contends,
    1. That the contract in this case is a contract of bottomry, by which the vessel was pledged; and although * the personal remedy on the bond is lost, yet the plaintiff has a right to follow the proceeds of the pledge into the defendant’s hands.
    2. That if the lender on a bottomry contract is not entitled to salvage, the defendant has received a sum of money, equal to that which the plaintiff demands in this action, which he is not, in equity and good conscience, entitled to retain from the plaintiff.
    In support of the first proposition, it is contended, 1. That by the general marine law, a bottomry bond executed by the owner creates a lien, or gives to the lender a remedy against the vessel; or, in other words, that the vessel is, by such a contract, pledged to the lender. This is expressly laid down by Pothier, 
       by Emerigon, 
       and by Valin. 
       Nor is there any difference, whether the bond is executed in the port where the owner lives, or another. — 2. That by the general marine law, the lender on bottomry is liable to general average, and entitled to the benefit of salvage. In the old treatise called Le Guidon, 
       it is expressly said that money lent on bottomry shall contribute to general average. By the 17th article of the French Ordonnance De La Marine, 
       it is declared, that in case of shipwreck, contracts a la grosse shall be reduced to the value of the effects saved; and by the 16th article of the same ordinance it is provided that the lender shall contribute to gross average, &c.; and this is said by the commentator to have been borrowed from Le Guidon. Emerigon says, that by the sinistre majeur, the action personal is extinguished, and there remains to the lender only the action real against the effects saved;  and that he is vested with a right to those effects from the moment the accident happens. Bynkershoek declares that whatever is saved, when the ship is wrecked, and does not reach her destined port, remains pledged, &c. By the law of Denmark lenders on bottomry are bound to contribute to average losses, according to the amount of their interest.  These authorities show the general maritime law of Europe on this * point; and the principies of that law must govern contracts of this species, except in cases where they may be restrained by municipal laws. — 3. The marine law is so far adopted in the construction of this contract, that a loan on bottomry, made to the owner in the place where he lives, creates a lien on, or gives a remedy against, the vessel; and the ship and tackle, if brought home, are answerable (as well as the person of the borrower) for the money lent.  Bottomry is defined by Dr. Brown 
       to be a contract by the owner at home, binding by his own words both ship and person. Thus, where a part owner, for the purchase of part of a vessel, and for other purposes, executed a bottomry bond on the vessel, the Court of Admiralty in Ireland held that she was hypothecated, and that the form was not material.  In the case of Wilmer vs. The Smilax, 
       it was holden by Judge Winchester, that the vessel was pledged by a bottomry bond, and he sustained jurisdiction.
    The question, whether the lender on a contract of bottomry is liable to general average, and entitled to salvage, has never yet been regularly before the courts in England. It must be acknowledged, indeed, that Lord Mansfield once said,  that by the law of England, upon a bottomry contract there is neither average nor salvage ; and the same opinion, as far as it relates to average, was adopted by Lord Kenyon at nisi prius.  But Marshall, who reports these dicta, says that he has anxiously sought in vain to find any decided case, or authority in the law, which could warrant the doctrine. And he says expressly that by the general law of merchants, the lender on bottomry is entitled to salvage; observing that, without the benefit of salvage, a bottomry contract must partake greatly of the nature of a wager. Park, in discussing the same points, yields to the authority of the two judges before mentioned; but he at the same time states that the law has always been otherwise upon the continent of Europe.
    
    * 2. But should it be the opinion of the Court, notwithstanding the authorities cited, that a lender on bottomry is not entitled to salvage, yet the plaintiff in this action is in equity and good conscience entitled to recover of the defendant the money he has received under the award of the commissioners upon the case of the Charming Sally.
    
    This is one of that class of cases, where the remedy on the original contract being lost and extinguished by a vis major, an implied contract is raised by subsequent events. Thus, in contracts for carrying goods or persons, if the vessel be wrecked or captured, and the owner receives his goods, the carrier may waive his special contract, and recover a pro rata compensation in an action upon an implied assumpsit. This position was admitted by the whole court of King’s Bench, in the case of Mulloy vs. Bacher, 
       where there was a special agreement to carry passengers from Demerara to Flushing; the vessel being captured and carried into England, where the passengers were set at liberty, and their luggage was restored to them. The same doctrine was recognized by the Supreme Court of New York in the case of Post & Al. vs. Robertson, 
       excepting Judge Livingston; and this was where there was a charter party, the plaintiffs becoming nonsuit, because they had misconceived the form of their action. Sir William Scott also recognizes the principle in the case of The Copenhagen, 
       whicli was a vessel bound from Smyrna to Copenhagen, put into a British port in distress, and was afterwards detained, and a pro rata freight was decreed. So in the case of Curling vs. Long. 
       —In the case of Baillie vs. Moudigliani, 
       a vessel bound from Nevis to Bristol was captured, carried into France, and there condemned. Upon an appeal the sentence of condemnation was reversed, and the proceeds of the cargo, which had been sold, was paid to the owners. The court held them accountable for freight of the cargo pro rata. In this case the contract had been dissolved ; but upon the restoration of the * property an implied promise was raised to pay so much freight as had been earned.
    The particular circumstances of this case put the plaintiff on higher ground than in an ordinary case of salvage. Here was not a capture in war. The government of Great Britain, under whose authority the seizure took place, has acknowledged the taking unjustifiable ; the claim for indemnity has been settled by commissioners, quasi arbitrators, and a full compensation has been awarded to the defendant, for the loss of the whole enterprise, including his vessel and freight; and it has been received by him. A portion of it belongs to the plaintiff upon every principle of law and equity; and this is the proper action, by which he should recover it.
    
      
      Story
    
    was aware of the difficulty of arguing the cause, after the merits of it had been in some degree anticipated in the former action between the same parties upon the same bond. But notwithstanding the strong intimations of the court in that case, as to the general principles, and the pointed language of one of the judges as to the dishonesty of the defence, he observed that as his client and himself still believed the defence honorable as well as legal, he hoped to be excused, if his argument should be extended to an unusual length. And that length must be the reporter’s apology for the very abridged statement he gives of the argument; observing that Story read and applied the greater part of the numerous authorities, which he cited in support of the several points made by him.
    It was contended by him, that if this action was maintainable at all, it must be upon one of the following grounds : —
    1. Upon the principles of the common law ;
    3. Upon the principles of the marine law; or,
    3. Upon certain equitable principles, which in cases of this nature are extended to legal remedies, in modern times.
    1. Upon the common law; and this must be on one or other of the following grounds, viz.: —
    * 1. That the condition of the obligation has been fulfilled, and the event has taken place, upon which the payment was to be made. — But this is expressly negatived in the decision of the former action upon the bond.
    3. Upon the doctrine of cy pres, or that the condition has been performed as near as it could be, and therefore substantially. — To this the same answer may be given.
    3. Or upon the doctrine of apportionment.—This admits of several answers. 1. If the doctrine were true, and applied to the case, the apportionment should have been made in the original action on the bond, and the judgment in that action is now a bar.  — 3. The law allows no apportionment in the present case. A contract, with or without seal, cannot be apportioned.  In addition to the ancient authorities cited to this point, which, however, it will appear, have been adhered to by the wisest and ablest modern judges, although the rule has been sometimes lost sight of, the case of Cutter vs. Powell 
       has a strong bearing on the position.
    
      It is true in the present case the plaintiff goes for his full compensation ; but the principle, if true, must bear through all the varieties of the case, from a full compensation to the smallest salvage. This is a contract at common law, and the party cannot recover on such a contract, but upon the fulfilment of all the conditions on his part.
    2. Upon the marine law, the plaintiff cannot recover, unless he shows that that law, as adopted in this country, is decisively in his favor, and that this is a contract of a universal nature, to be governed solely and exclusively by that law. For unless this be shown, the parties might contract upon different principles, and the contract must be governed only by its own stipulations. Thus it is clear that by the terms of this contract, payment was to be made only in one event, viz., the safe performance of the voyage, and the arrival of the vessel at Salem. The parties had a right so to contract, and the law must enforce the contract as it was made.
    * Further, this is not a contract of a universal nature, or governed by any general law, but by the mere stipulations of the parties;  and although known among various nations, their regulations respecting it vary in forms and principles. — Thus by the Roman law, it was essential to the contract of bottomry, that the money should be employed in merchandise, to be laden in the ship at the rislc of the lender. 
       — At Leghorn and other places in Italy, it is permitted to lend money on bottomry in form of a wager; and the contract binds, although the borrower puts nothing at risk in the designated ship.  — In France, this is prohibited, and it is of the essence of the contract that the money should be employed in some object involving a sea risk.  — In England, a bottomry bond on the voyage merely would be good, having been prohibited by statute only in cases of East India voyages.  — In Spain the same rule exists.  — In France, money may not be borrowed at respondentia on freight, nor on profits.  In England, it may be borrowed on freight;  while by the canon and papal law maritime loans are altogether prohibited. 
    
    [Many more instances of the variance of this species of contract in different commercial nations were cited ; from whence it was inferred that the contract is not of a universal nature, or governed by universal law; that no implied agreements are to be added; and that it is to be construed, like other contracts, by what the parties have done and said.]
    As the plaintiff relies on the principle, that a lender on bottomry has a lien on the effects saved, and their proceeds, and that salvage properly belongs to the contract, it will appear on a further examination of the foreign jurists and the English decisions, that there is no such universal or general principle. The ordinance of Louis the Fourteenth, with the commentaries of Valin, Emerigon, and Pothier, have been cited to support the plaintiff’s claim on this ground. But an examination of the articles on this subject * will show clearly that those commentators speak only in the language of positive law, or the deductions flowing from the ordinance itself. Among the principal points maintained by them, none seems more clear than that general average is of the essence of this contract. Yet this position forms no part of the marine law of several other enlightened and commercial nations. — The ordinance of Hamburgh, 
       expressly provides that the lender on bottomry is free from all averages, and not liable to contribute thereto. The ordinance of Amsterdam, 1744, provides that the lender shall not be liable to gross average. 
    
    We contend, that by the law of England, there is neither average nor salvage. It is true that Marshall says, he can find no authority to the point, and he, therefore, states it doubtingly. But Parle lays down the doctrine as settled, and considers the statute of 19 Geo. 2. c. 37, § 5, as introductive of new law. Blaclestone, 
      
      Christian, 
      
      Abbott., 
       and Fonblanque, 
       view the statute in the same light. That there are no very recent decisions on this question must arise from the infrequency of the con tract at present in England.
    
    But two decisions directly in point have been made by "two eminent judges, who together illuminated the bench of justice for more than half a century. In Joyce vs. Williamson the doctrine was fully avowed by Lord Mansfield. “ It is clear,” says he, “ that by the law of England, upon a bottomry contract there is neither average nor salvage. Either way there must be a hardship, but the law allows no average or salvage on bottomry bonds.” This case was on a bottomry bond upon special pleadings, and if there had been any general average by the English law, the judgment was not rightly given ; for the defendant would have been entitled _o a deduction in that action, it being in the nature of a part payment, or at least a lien upon the bond. In Walpole vs. Ewer, which arose on a respondentia bond, on which general aver* age was claimed, Lord Kenyon said, * “ By the law of England, a lender on bottomry is not liable to average losses.” — In both the cases the question was directly before the court, and those eminent judges spoke without doubt or hesitation. Nor has the doctrine been since questioned. We may thence fairly conclude that the profession have generally acquiesced in it In America no case has been litigated to ascertain the point.
    There can then be no ground of English law, on which the plaintiff can entitle himself; and he must sustain his action by the positive rules of the French code, which may be perfectly equitable in itself, but in its distribution of justice cannot be followed through out in a common law court of another country. But the Roman law, which is the highest source on this subject, speaks decisively in favor of the defendant.  By the language of the civil law, the obligation is extinguished forever ; and it is only by the municipal regulations of France that it is revived. On this head the very sensible observations of Judge Livingston, in giving his opinion in Post vs. Rohertson, have great application and force.
    In the great case of Lucina vs. Crawford, 
       the court “ held, that there might be an insurable interest, without power to abandon, as in the case of freight, hottomry and respondentia,” which plainly shows that no salvage exists on a bottomry contract; else an abandonment might, in a policy on it, unquestionably be required, as in other cases.
    3. But the plaintiff rests his action upon the ground, that we have received money, which ex equo et hono we ought not to retain ; or that the receipt of the money, under the award of the commissioners, constitutes a new consideration, which springs up, although the orignal obligation is extinguished, to enforce his claim upon an implied promise.
    But. there can be no want of conscience in withholding money, which by the contract of the parties is not due.
    * Until an agreement to this effect appears, the withholding the money, so far from indicating a want of regard to mercantile honor, rests on the fair basis of an honorable compact.
    The whole of this doctrine of a right to recover, where a contract has not been complied with, rests on the modern case of Luke vs. Lyde, 
       the decision of which is extremely questionable, and rides over all the ancient and settled doctrine. The case was never much relished in England; and it was certainly an unjust decision, for the owner derived no benefit from it. So it was considered by this Court in Coffin vs. Storer. 
       It evidently did not meet the approbation of Lord Kenyon in Cook vs. Jennings,  and was reluctantly admitted by Lord Ellenborough in Mulloy vs. Bacher,  where he stated that the case, if supported at all, stood on the marine law, and was contrary to the law of England. In Liddard vs. Lopes, 
       Lord Ellenborough said, “ The case of Luke vs. Lyde has been often pressed beyond its fair bearing ; but the true sense of it has been expressed by my brother Lawrence in Cook vs. Jennings, and by my brother Le Blanc in Mulloy vs. Bacher. The parties have entered into a special contract, by which freight is made payable in one event only, that of a right delivery of the cargo, according to the terms of the contract, and that has not taken place ; there has been no delivery, and consequently the plaintiff is not entitled to recover. He should have provided for the emergency which has arisen.”
    This decision restored the old law, and the same principle, that even in marine contracts the parties shall be bound by their own stipulations, and not otherwise, has been rigidly adhered to in a great variety of cases. Among them may be mentioned Bright vs. Cowper; 
       cited and approved in Cook vs, Jennings, and by Abbott ; 
      
      Cutter vs. Powell. 
       The case of Cook vs. Jennings is often quoted, and never with disapprobation. No action was *ever brought to try the question in assumpsit. Other cases to the same effect are Smith vs. Wilson, 
      
      Atty vs. Lindo, 
      
      The Hiram, 
       and Scott vs. Libbey. 
      ' Yet if the French ordinance and the language of its commentators be the marine law, these cases would have received a different decision. See also the cases of Hunter vs. Princeps, 
       and Appleby vs. Dods. 
      
    
    In the case of Dandy vs. Turner 
       a part owner borrowed money at bottomry, payable on the return of the ship from the voyage she was then going on, in the service of the East India company ; and the company broke up the ship in the East Indies. The owner recovered damages of the company, though not in full satisfaction. The lender on bottomry brought his bill to recover proportionable payment out of the money recovered ; but it was dismissed.
    The case of Ingledon vs. Foster 
       forms the converse of the case at bar, and shows that if the condition stipulated by the parties is not exactly performed, no relief shall be given to either, whatever may be the equity of the case in other respects.
    Nor does the fact, that the owner has received a full compensation for his loss, vary the principle, even in maritime contracts. Thus no wages are due to seamen, when the freight is lost, although the owner recover of his underwriters a full compensation. 
    
    The defendant in the case at bar contracted to repay the money upon the vessel’s safe arrival at Salem from her voyage. The plaintiff agreed to lose, if the ship was lost during the voyage by the perils stated, and did not arrive at Salem. The ship was lost; •she never arrived at Salem; she was captured and condemned, and was never restored to the plaintiff. Upon what principles of justice ■can the plaintiff complain ? In a fortunate event he was to receive 'his money and exorbitant interest, vastly beyond the rate of insurance, whether the defendant made a profit or not, or whether he was ruined or not by the stipulation. On the other hand, though the vessel had been * wrecked, and afterwards repaired at an expense nearly equal to her value, and had performed her voyage, the plaintiff would have been entitled to his money and his maritime interest without any deduction. As there has been an express contract in the case, the law cannot imply a different one ; the receipt of the money constitutes no consideration to raise a promise ; nothing is due to the plaintiff ex aequo et bona ; the defendant has a right to say, Non in hac fcedera veni.
    
    But it is said the plaintiff is entitled to recover upon the special circumstances of this case; that the compensation was made by the commissioners to all persons injured; and that the defendant has in fact received the sum, which in justice he is bound to pay over to the plaintiff.
    The facts, however, show nothing like this. The compensation was the value of the vessel and the freight only. It could be nothing more under the provisions of the treaty. The commissioners did nothing more than execute the decree of reversal. They had no authority beyond this. They could not consider and award on an incidental claim, as a-bottomry or insurance interest. Nor was any such claim made. It would have been equally novel and absurd. This bottomry bond was not captured or condemned ; and for captures and condemnations only could the commissioners award damages. But if it were otherwise, the plaintiff should have claimed it. Having neglected to do so, he cannot claim from the defendant money lost by his own neglect.
    
      But in truth the hardship to the defendant would be extreme, since the plaintiff would be in as good a situation as if he had never hazarded the money; while the defendant would suffer the whole loss of property, to the amount of the bond, would stand the insurer of the lender, pay interest (and according to the terms of the contract 36 per cent.) on a principal sum, which he was not to pay, but on a fortunate termination of the voyage ; and yet neither interest, * nor principal, nor premium have been allowed him by the commissioners.
    The whole question in this case has once been before the Court upon all the facts. The action was not sustained; it has passed in rem judicatam. If the plaintiff was entitled to recover upon the marine law, it seems very clear that he was entitled to judgment in the former action ; because, if it was a contract governed by that law, it must have had implied in its terms all the conditions and stipulations of that law. It was precisely the same, as if the condition had stated expressly what that law implied. And if so, no doubt could arise, that if the stipulations had been expressed, the replication was good for the proportion, to which the plaintiff was entitled. Being once barred, then, the plaintiff is not now entitled to recover. He cannot resort to assumpsit, when he had a sealed instrument for his debt. If a bar be once good, even though founded on a statute that has since expired, it will avail forever, if judgment passed while it was in force. 
    
    Upon principles of the common law, or of the marine law, or ot equity, or the special circumstances of the case, it is humbly conceived and insisted that the plaintiff has no claim to recover on the ground of the award of restitution to the defendant.
    
      Dexter, in reply.
    The defendant’s counsel would argue, that because decisions relative to the subject before the Court are in collision with each other, there is therefore no law merchant by which this case can be decided. The same reasoning would go to prove that there exists no such thing as a law of nations, or of admiralty ; and perhaps more strongly yet, that we have no common law. But because writers or judges may at different times, or in different countries, have advocated contradictory opinions on any particular point, it does by no means follow, that there are no established principles of law on such subject.
    The species of contract, which has given rise to the present action, being most frequently entered into between * citizens of different countries, it becomes necessary for the construing and enforcing it, that there should be some general commercial law, recognized by all commercial nations. Perhaps such a forum is not so necessary to any other contract known among merchants. With this view all maritime nations have established courts of admiralty, who are exclusively governed by such general law, for the purpose of administering justice between citizens of different nations.
    We have referred to books of the highest authority in this law, declaring that the lender on bottomry is liable to general, though not to particular average, that he is entitled to salvage, and that he has a lien on the thing pledged, and its proceeds, wherever they may be.
    Nor can it be said that on this point the law of England is at variance with that of the rest of Europe. The mere extrajudicial observation of Lord Mansfield will not determine the law of England But the real import of the observation alluded to was no more than that there was no case, in which the principle, which he denied, had been adjudged. And on the other hand, Marshall, a very able and laborious compiler, declares he can find no authority for his lordship’s position; and plainly expresses his doubts of it as law, though Lord Kenyon had adopted it, from respect to his predecessor.
    In the case of Luke vs. Lyde Lord Mansfield adopts the general law, and quotes the foreign jurists with great respect, considering their opinions as controling the maxims of the common or municipal law of England, as applicable to the subject of freight. If such were his opinions at that time,— and they were unquestionably correct, — the same general law, which he applied to the contract respecting freight was equally applicable to the contract of bottomry. Salvage attaches as well to one as to the other subject by that law; and the dictum afterwards dropped by his lordship in the case of Joyce vs. Williamson is plainly inconsistent witli the solemn opinion delivered by him in the case of Luke vs. Lyde.
    
    * Much reliance has been placed on the old common law relating to the apportionment of an entire contract, and great research into the ancient authorities has been shown. But the doctrine does not apply to the plaintiff’s demand in this action. He does not claim a part of what would have been regularly due to him upon the bottomry bond, if the voyage had had a successful termination. The Court have already determined that contract not to be a subsisting one. The regular remedy, by which he now seeks his right, is the equitable action for money had and received. The defendant has received the value of his vessel and height, including the money lent him by the plaintiff. It is against conscience for him to retain it; and if the plaintiff has any remedy, it is by this form of action.
    We cannot, since the former decision, maintain that the vesse, was not lost by one of those risks, on which the plaintiff placed his loan. But if the loss was within the contract, and by subsequent events compensation for it has been received by the defendant, although we cannot recover on the contract, we may yet be entitled to recover in an equitable action.
    But we contend more strongly that the plaintiff is entitled under the treaty. The money received by the defendant was virtually awarded to the plaintiff, so far as his share of the concern extended, and was paid to the defendant in trust for him. The plaintiff had a lien, as mortgagee, upon the vessel, and upon the proceeds of it, when they carne into the hands of the defendant. Those proceeds were in part a compensation for the loss of the subject, which constituted the plaintiff’s security. To the most superficial observation it is plainly against equity and all good conscience for the defendant to retain this money from the plaintiff.
    
      
       See the report of the action referred to, ante, yol. iii. page 443.
    
    
      
      
        Traite Du Contr. Du Pret a la Grosse Avanture, Art. 11, § 2.
    
    
      
      
        Traite Des Cont. Ala. Grosse, c. 11. § 2.
    
    
      
      
        Ord. de la Marine, Liv. 3, Tit 5, Art. 2.
    
    
      
      
        Chap. 19, Art. 5.
    
    
      
       2 Valin 20.
    
    
      
      
        Emerig. ubi supra.
    
    
      
       Marshall, 660.
    
    
      
      
        2 Black. Comm. 457.
    
    
      
       2 Brown's Civil Law, 196.
    
    
      
      
        Ibid. 530.
    
    
      
       2 Peter's Adm. Decisions, 295.
    
    
      
      
        Joyce vs. Williamson, Marsh. 653.
    
    
      
      
        Marsh. 660, Walpole vs. Ewer.
      
    
    
      
       5 East, 316.
    
    
      
       1 Johns. Rep. 24.
    
    
      
       1 Rob. Mm. Rep. 289.
    
    
      
       1 Bos. & Pul. 634.
    
    
      
      
        Park, 53.
    
    
      
       1 Roll Rep. 368. — 3 Rep. 24, a.— Brownl. 33. — Vin. Abr. Apportionment, E. 2. — Coke on Magna Charta, 503. — 1 Vent. 276. — Cro. Eliz. 771. — Com. Dig. Suspension, E.
      
    
    
      
      
        Bro. Contract, pl. 30, 31. Apportionment, pl. 1, 7, 26,17. Laborers, pl. 48 — 3 Mod. 153. — Salk. 65, S. C. — Moore, 116, pl. 260. — Cro. Eliz. 351. — Finch's L. lib. 2, c. 13. — Carth. 466. — 1 L. Raym. 360. — Perkins, § 824, 825, 828.
    
    
      
       6 D. & E. 310.
    
    
      
       4 East, 323, Busk vs. Feason.
      
    
    
      
      
        Dig. lib. 22, tit. 2, § 1.
    
    
      
      
        Casaregis Dise. 14,15.
    
    
      
       2 Emerig. 492. — Ord. Art. 14, h. t,
      
    
    
      
       2 Black. Comm. 458. — Park, 411.—Abbott, 164. — Marshall, 640.
    
    
      
       2 Magens, 56, 59.
    
    
      
       2 Emerig. 480. — Marsh. 644.
    
    
      
      
        A Rob. Adm. Rep. 245.—2 Brown''s Adm. 198.—Abbott, 159.
    
    
      
      
        Santerna. I 1. § 26. — Straccha, 798.
    
    
      
       2 Magens, 225.
    
    
      
      
        Ibid. 136. — 1 Magens, 19, 20.
    
    
      
       2 Comm. 455
    
    
      
       2 Comm. 455, note.
      
    
    
      
      
        Abbott, 164.
    
    
      
       1 Fonb. 253
    
    
      
      
        Dig. lib. 22, tit. 2, sec. 3. — Hall’s Law Journal, 153.
    
    
      
       5 Bos. & Pul. 310.
    
    
      
       2 Burr. 882.
    
    
      
       5 Mass. Rep. 252.
    
    
      
       7 D. & E. 381.
    
    
      
       5 East, 316.
    
    
      
       10 East, 526.
    
    
      
       1 Brownl. 21.
    
    
      
      
        Page 313.
    
    
      
       6 D. & E. 323.
    
    
      
       8 East, 437.
    
    
      
       1 New Rep. 236.
    
    
      
       3 Rob. Adm. Rep. 18t
    
    
      
       3 Johns. Rep. 336.
    
    
      
       10 East, 378.
    
    
      
       8 East, 300.
    
    
      
       1 Mr. Eq. Ca. 372.
    
    
      
       4 Vin. Abr. 281, cited Marshall, 751
    
    
      
      
        McQuirk vs. Ship Penelope, 2 Peter’s Adm. Pep. 276. — Goodrich vs. Peabody, cited in Abbott, 423, Amer. edit. 1810.
    
    
      
       12 Mod. 400, Faulkland vs. Stanion.
      
    
   At this term the judges delivered their opinions, seriatim,, to the following effect: —

Parker, J.

In this case the principal facts are, that the plaintiff in 1793 loaned to the defendant five hundred * dollars on a bottomry contract, on which he was to receive the principal, with three per cent, per month for marine interest, on the return of the vessel to Salem, from the voyage which he had undertaken ; and in case of a loss of the vessel by perils of the seas, or by fire, or the enemies of the United States, the contract was to be void. — The vessel arrived at the Island of Guadaloupe, discharged her cargo, took a return cargo, set sail for Salem, and was captured by a British ship of war, carried into St. Christophers, and there libelled and condemned. On an appeal to the lords commissioners of the admiralty, the decree of condemnation was reversed, and a restoration ordered; but the vessel had perished, or been converted to the use of the captors, so that a restoration could not be had. But under the treaty of 1794 full compensation for the vessel and freight, together with interest from the capture, was awarded by the commissioners under that treaty, and the amount thereof has been received by the defendant

An action has since been brought upon the contract, but all these Facts appearing on the pleadings, the plaintiff failed to recover, because the event, upon which the money was to be paid, had not occurred; and the Court felt themselves bound by the rules of law to decide that the subsequent indemnification of the defendant could not give effect to a contract which had been defeated by events, which appeared to be within the stipulations of the parties. That decision was founded upon a necessary adherence to technical rules, and not upon any apprehension that the defence set up to the bond was really meritorious.

An action for money had and received is now brought to recover the proportion, supposed to be due to the plaintiff upon equitable principles, of the money received by the defendant under the award of the commissioners; and the question is, whether any part of that sum ought ex aequo et bona to be paid over to the plaintiff.

Until I heard the very elaborate and learned argument by the defendant’s counsel against the action, I did not * entertain a doubt upon this question. It appeared so clear that a part of the money received by the defendant was a compensation for the five hundred dollars, for which his vessel was pledged to the plaintiff, that I had no suspicion he would await a suit at law before he paid the money.

After a careful review of that argument, I remain of the same opinion ; although I confess that some of the points, on which I formerly placed it, have been shaken. I do not know but it is proved by the argument, that the doctrine of average and salvage, as applicable to bottomry contracts, instead of being the general maritime law, is the law of particular commercial countries; but on this point I give no decided opinion, because the present case does not require it.

Neither should I like to attempt a refutation of the argument against the apportionment of contracts. This might be a difficult task, and may be avoided in discussing the case before us. That a party, having a meritorious claim on another, secured by a sealed contract, which he cannot enforce for want of compliance with some stipulation, may nevertheless obtain what is justly due to him in another form of action, is settled by the case of Luke vs. Lyde. which has never been overruled in England, and has been frequently relied on as law in this country. Even in the case of Cook vs. Jennings, where the party failed to recover upon the charter party, because he had not done what by his contract he had undertaken to do, it is strongly intimated by the court, that he might obtain justice in an action of assumpsit upon the implied promise of the freighter to pay for the hire of his vessel pro rata iiineris. It is enough to satisfy the nicety of technical rules, that a party seeking a remedy upon an express contract shall be held to show that he has performed the stipulation, which entitles him to be paid. At the same time it is happy that the law is liberal enough to provide that the man, who voluntarily receives part of a benefit which he had secured by a contract, should be considered as * making a new contract to pay for the part which he so consents to receive.

But I do not know that it is necessary to establish even this principle, in order to maintain the present action. The broad basis of an action for money had and received is, that one man has actually received money belonging to another, or which, by the rules of common honesty, he ought to pay over to the other. The vessel of the defendant sailed to the West Indies, pledged to the plaintiff for the sum of five hundred dollars, and the interest which accrued thereon. At the time of the capture the plaintiff had an interest in the vessel to that amount, and the defendant’s interest was less than the whole value by the same amount.

Had the vessel continued alive, and returned to Salem, or in any event except an actual loss of the vessel, the defendant would not have been restored to his ownership of the whole, without paying to the plaintiff the sum loaned and interest; because the plaintiff had a lien upon her, irrevocable but by payment of the money. This lien would have followed her into whose hands soever she should have gone with the consent of the defendant; and when the decree of restoration passed, had the vessel been in being, the plaintiff’s interest would have continued, and was defeasible only by the payment of the money for which it was pledged ; and in such an event I do not see but marine interest would have been recoverable to the time of her actual arrival at Salem, her port of discharge.

Under these circumstances, when the two governments provided by treaty that all parties, who had suffered by the unjust captures made by the British, should be made whole, whatever was their interest, or in whatever form it existed, can it be doubted that the plaintiff was a suffering party within the meaning of the treaty ? — What prevented him from receiving the money upon his bond? Certainly the capture by the British. — Who destroyed his pledge for the loan ? Certainly the British. — It was therefore proper * that he should be indemnified ; and the only question is, whether they have not intended to indemnify him.

Now, the whole value of the vessel has been paid for, as also hei freight, and interest from the capture. This payment has been nominally awarded to the defendant; but it was substantially for the use of the plaintiff, and the former, in receiving it, was the agent of the latter. This principle was determined in the case of Heard vs. Bradford, in which it was declared by the court, that whoever had a legal interest in the property, the loss of which was compensated by the award, should be entitled to his proportion, in an action against the person in whose favor the award was nominally made. I consider that case as deciding every important question in this.

Upon the whole, I cannot see any fair principle, upon which a man, who has borrowed money upon the pledge of his vessel, the payment depending upon a contingency, the happening of which is prevented by a third party, who, having destroyed the pledge, afterwards makes complete satisfaction for it in money, besides paying him damages for detention, can refuse to repay the money he so borrowed. I acquit, however, the defendant of any unfair intentions, because the zeal of the argument in favor of the principle-, and the labor bestowed on it, shows a settled opinion of his counsel in his favor.

Sewall, J.

The principal question arising in the case agreed by the parties is novel; and, as I apprehend it, the circumstances, upon which the decision depends, are singular and unprecedented.

When the same parties were before this Court, in an action brought by the plaintiff upon the defendant’s bond, the facts now appearing in their agreed statement were then set forth and averred in special pleadings, closed by an issue in law. In that action judgment was entered for the defendant by the decision of a majority of the justices now present, who sat in that cause. Their opinion was that the repayment of the loan had been risked upon the * performance of the voyage specified in the defendant’s bond, which had been finally defeated by the capture and loss of his vessel, and that this discharge from the loan was conclusive in an action upon the bond.

A supposed right of salvage, implied and to be understood in a bottomry bond, and in a contract for a loan upon a marine risk, was then adverted to, and argued for the plaintiff. But the question, arising in that view of the case, was not determined; it being .the opinion of the justices who concurred in the decision, that a demand of salvage, not provided for in the condition of the bond, was not recoverable in an action upon the original contract. And to fortify the decision in this respect, some notice was taken of the course of proceedings in France, where a right of salvage is very explicitly secured to the lender of money upon contract a la grosse avanture, including contracts of bottomry and respondentia. When the loan terminates by a misfortune, which excuses the borrower from a repayment, he is also discharged from any personal liability upon the original contract; and where effects, saved from the loss which determines the risk, have come to his hands, he is liable in another form of action.

In the case at bar, as it is now presented, the principal circumstance to be considered is the compensation awarded and paid to the defendant for the loss of his vessel and voyage. The plaintiff had a share and concern in the voyage defeated and lost, and sustained an actual loss and damage to the amount of his loan.—Has he any interest or property in the compensation, accruing to him either by the operation of the original contract, as a salvage accrues to an insurer after payment of a loss upon a policy of insurance ? or by virtue of the provision in the treaty of London, under which the defendant obtained his award ?

If the plaintiff is entitled, the present form of action is suitable to the case ; for on either ground his interest and property in the sums paid, for the damages sustained by the loss of the vessel and voyage, is money received to his * use, which the defendant cannot justly retain. Nor, as I conceive, is the demand now pursued against the defendant, in any sense, an apportionment of the original contract. If maintained against him, it is because money has come to his hands belonging to the plaintiff, by a title, which he derives indeed from the original contract and loan, and the events which determined it. But the defendant’s liability in this action does not depend upon the circumstance, that he was a party to the former contract; but he is liable, as any other person would be, who holds money which he is not entitled to retain, and which belongs to the party demanding it.

The plaintiff’s demand has been urged upon the ground of aright to salvage, implied in the defendant’s bond by a necessary construction, required by mercantile usages applicable to bottomry and respondentia bonds, and generally to contracts for loans placed by the lenders upon maritime risks. Valin and other foreign jurists have been cited to prove the usages of commercial nations in this respect.

On the other hand, the defendant’s counsel has gone into a very extensive examination of the rules established among the European nations, to prove that contracts of this description have no uniform operation, but are the subjects of very various municipal regulations.

But after all, the question, as it arises between these parties, must be determined in this jurisdiction according to the usages which have been adopted with us, or by the stricter principles of the common law. In this view of the case, the dicta of Lord Mansfield, followed by Lord Kenyon, in the decisions which have been cited, and the total failure of judicial decisions in support of the construction insisted on for the plaintiff, are in a degree con elusive against an allowance in the nature of salvage; especially where the contract for the loan contains no pledge of the vessel For, according to Bynkershoek, who, more than any other foreign jurist, has defined the contract of bottomry, and described its use and * operation, according to its nature and origin, independent of municipal regulations, it is the pledge of the vessel, or other effects upon which the loan is made, and of what may remain of them after any event, by which the personal responsibility of the borrower is excused, from which the right to salvage is inferred. And for myself, I cannot perceive in the contract in question any pledge of the vessel, upon which the loan was placed, nor is there any usage, that I know of, which requires or justifies a construction to-that effect.

Has the plaintiff then any interest, or property, in the compensation awarded and paid to the defendant, under the provisions of the treaty of London usually called Mr. Jay’s treaty ?

It is ascertained by the decree of reversal, that not only the condemnation, but the capture, of the defendant’s vessel and cargo, had been irregular and illegal. By this reversal and the decree of restoration, the capture, as operating, in itself a discharge of the defendant according to the condition of his bond, was annulled. If an actual restoration of the vessel had been practicable, and had been made pursuant to the decree, and her return to Salem after-wards had been prevented by the neglect or voluntary act of the defendant, his liability for the loan would have revived and continued upon his bond, according to its legal construction and operation ; and the capture alone, thus avoided, would have afforded him no defence against the plaintiff’s demand. It may deserve notice, too, that thus far the rights of the parties are determined and preserved by general principles of national and municipal law ; the treaty having the operation only, if that was required in any case, of opening or renewing the remedy by appeal. But an actual restoration, in consequence of a decree of reversal, had become impracticable at the time of the treaty, or was supposed so to be ; and from various circumstances belonging to the cases intended to be provided for, an adequate compensation was not then to be had, by the * ordinary course of judicial proceedings, for losses and damages sustained. And here the treaty interposes, with an especial and extraordinary redress, and a declared intention to compensate losses and damages sustained by reason of irregular and illegal captures and condemnations, with the exception only of losses by the acts or omissions of the claimants.

For whom, then, was this provision made ? To whom was this redress of injuries, and compensation for losses and damages sustained, appointed ? For my part, I can discover no reason for stopping the course of this provision, and preventing it from reaching those who incurred a loss, arising entirely from the inability of the British government to effect a restoration of a vessel illegally captured and condemned.

In his necessity for this provision, and for the extensive operation proposed to be given it, the plaintiff’s case is distinguishable in some degree from other cases, which have undoubtedly occurred. Take the case of an award to the owner of a vessel illegally captured and condemned, made in his name and paid to him, who before the treaty had received from his insurers, in a policy of insurance upon the same vessel and voyage, the amount of their subscriptions as for a total loss. — According to their concern in the loss compensated, they would be entitled in the sums paid to the insured upon the award, recoverable as money paid to their use.

It may be said, that their title would be, either an express abandonment to them when the loss was adjusted, or that right to salvage, which is implied and understood between the parties to a contract of insurance in the most usual form.

To come nearer, then, to the present case, suppose the insurance to have been against a total loss only, without benefit of salvage. The insurer would in this last case be entitled either to reclaim his payment upon the policy as a payment by mistake, or to recover the compensation according * to his interest in it, arising from the loss and damage sustained by the insurer, and not the insured, who to that amount had been previously indemnified.^

This Court decided for the plaintiff in the case of Heard, Assignee of Geyer and Son, vs. Bradford, upon this construction of the provision of the seventh article of the treaty of London; and the reasoning of the judge, by whom the opinion was in that case delivered, appears to me to favor the application now proposed, of the provision of the treaty to the benefit of the plaintiff in the case at bar. Bradford had received the amount of an award under the treaty for a vessel illegally captured and condemned, and for his freight. The vessel at the time of the capture was on a voyage for which she had been chartered to Geyer &f Son, and was in their employ. After the capture, they had been induced to pay, and either before the treaty, or before the award, Bradford had received from them the hire or freight of the vessel up to the time of the capture, at the rate agreed by the charter party, notwithstanding the interruption, and although the freight was not payable by the terms of the charter party until the completion of the return voyage. It was thought unnecessary to determine the question made in the argument of the cause, whether the freight, as paid by Geyer &f Son, was then due and recoverable from them ; but as they, by their payment, had actually sustained the loss and damage to the amount of the freight, the award upon that subject was construed to be for their benefit. And it is stated as a general principle, “ that the rights of the parties must depend upon their interests; and that whenever an award was made nominally to one, where the interest was in another, that other would be entitled to the benefit intended.”

It may be objected, — and this seems to be the ground principally -relied on for the defendant,— that the events which defeated his voyage placed in his hands the sum borrowed of the plaintiff, as an indemnity to that amount, justly acquired to himself by the terms of the loan. And this being * conceded and established by the judgment in the former action between these parties, the defendant’s counsel would draw from it this further conclusion — that a compensation for his vessel and cargo, after he had been thus acquitted of the charge and risk undertaken for the plaintiff, is not to be considered as a restoration to the plaintiff, or as a provision for his benefit.

In this, as I think, unreasonable and inequitable inference, I cannot acquiesce. The seventh article of the treaty of London contains a provision for citizens of the United States, who had sustained losses and damages by irregular captures and condemnations. The plaintiff, to the amount of his loan, was one of these; and the defendant, to that amount, is excluded from the description of persons, for whom the provision was made, after an indemnification at the expense of the plaintiff. The plaintiff thereby became a partner in the loss, although not a part owner of the vessel on which the loan was made, or having any lien or pledge to secure the repayment. But the plaintiff’s concern in the loss is sufficient to establish an interest, to the same amount, in the compensation afforded by a public treaty, providing generally for all who had sustained losses, and to be regarded as an act of protection by the national government, by means of an advantageous treaty taking the place, as it may be understood, of letters of marque and reprisal.

It is in this view of the case, that I have come to the conclusion, that the plaintiff is entitled to recover. A stipulation to compensate the sufferers for their losses and damages is accepted by the national government, as a satisfaction for British depredations; so the illegal captures mentioned in the treaty, as complained of by the citizens of the United States, had been called. An award of compensation, in a case of loss by illegal capture, where the plaintiff was a partner in the loss, including in the estimate of it a sum for which at his expense the defendant had been previously indemnified, although made to the defendant, *and paid to him, must be considered as including the plaintiff’s share and concern in the loss compensated, and as directed to his use and benefit, by virtue of the stipulation and public law, un der which the award was obtained.

It may be necessary that the Court should now concur in some rule of estimating the damages recoverable in this novel and unprecedented case. And for myself, as the defendant confesses the receipt of an adequate compensation, to the full value of the vessel, with her freight or estimated earnings for the voyage, defeated by the illegal capture, I am inclined to think the plaintiff entitled to the full amount of his loss ; that is to say, to the sum loaned, and the maritime interest secured by the bond, reckoned to the time of the capture. But that there may be a final decision, I concur with my brother, who concurs with me in rendering a judgment for the plaintiff; that is, to restrict the plaintiff’s loss to the sum originally loaned. To this must be added the amount of interest received by the defendant, according to the terms of the award.

Sedgwick, J.

This case has been very fully and very learnedly argued ; but it is unnecessary, in the view which I have taken of it, to consider the various points which have been made and discussed. The legal merits of the case, in my opinion, lie within a very narrow compass.

Upon the loan of the money which is demanded, a specialty for the repayment of it was given; a bottomry bond, in a penalty to be void upon the happening of two events, which are expressed — 1. Upon the payment of the sum loaned, with the marine interest agreed upon, within twenty days after the safe arrival of the schooner at her port of discharge in this commonwealth.

This event never has taken place ; the schooner has never arrived' at any port in the commonwealth, nor has the money ever been paid. Thus far there can be no pretence that the defendant is discharged on the terms of the contract.

* 2. The other member of the condition is thus expressed; “ or in case the said schooner should be lost through perils of the seas, or by fire, or by enemies of the United States, while she is performing the said voyage or voyages,” then the bond was to be void. The meaning of which undoubtedly is, that if such a loss should occur, the money loaned was not to he repaid.

This was a contract which the parties had a right to make. It was perfectly fair, and is intelligible; and there is no legal or equi- • table reason why it should not be carried into effect. The only question then is, whether such a loss as the parties contemplated has occurred. If it has, the defendant can under no form of action be compelled to make payment. When a lawful contract is formed by parties, their respective rights and duties must depend upon the terms of it.

In the consideration of the former action, I had precisely the same opinion of the merits of it, that I now entertain. I then thought, and I still think, that if the loss contemplated by the parties had not occurred, the plaintiff was entitled to his money. It was, however, then my misfortune to think that no such loss had taken place. But my brethren were of a different opinion; and that opinion is conclusive as well upon me as upon the parties. One of my brethren said, “ I think the facts in the case ” (the same facts which are stated in that now under consideration) “ I think the facts in the case bring it within one of the stipulated cases of loss.” I am satisfied that the taking, as alleged in the plea in bar, is to all intents a capture by the enemies of the United States ; and if it had been so alleged by' the defendant, the facts would have supported his plea.” After stating, the facts, he says, “ Here was a total loss, which discharged the defendant from his bond.” And he states the question, to which his argument applies, to be, “ whether any event, within the condition of the bond, has happened whereby the obligor is discharged from his contract.”

My other brother * was of opinion that the loss sustained was either by enemies of the United States, or by perils of the sea, both which risks were undertaken by the plaintiff.

Both of the judges, then, who determined the former action in favor of the defendant, determined also that the loss had occurred, which, according to the terms of the contract, was to excuse the defendant from payment; and unless they had so determined, I cannot perceive that it was possible for them to have decided as they did. This determination I am now bound to respect, and to be guided by. How, then, stands the case ? The plaintiff loans the defendant a sum of money, and in the contract of loan it is expressly stipulated, that on the happening of a certain event contemplated by the parties, the defendant should not be bound to -make payment. That event has occurred, and is proved by conclusive evidence, as I deem the former judgment to be. In this view I think the plaintiff is not entitled to recover.

Indeed, I know no instance in which a man can claim, on principles of law, a discharge from a contract, according to the stipulations of it, who can be bound on the ground of the contract after-wards ; which is precisely what is claimed in the present case. And if this principle be correct, as I conceive it to be, the effect of the British treaty is not necessary to be considered.

To rectify a mistake, entertained by some of the profession, relative to my opinion in the former action, who supposed that I thought that the bond should have carried marine interest after the seizure of the vessel; I think it proper to observe that I never entertained that opinion. That was a question not necessary to be determined at that time, because, had the plaintiff recovered, the amount would have been a subject of equitable consideration. 
      
       4 Mass. Rep. 336.
     
      
      
        Bynk. Quaest. Pub. lib. 3, c. 16.
     
      
      
        Marshall, 659. Joyce vs. Williamson.
      
     
      
       4 Mass. Rep. 326.
     
      
       See 1 Black. Comm. 258, 9
     
      
      
         [Nothing short of a total destruction of the ship will constitute such a loss as to discharge the borrower of money upon bottomry.—Thomson vs. The Royal Ins. Co. 1 M. &. S. 30 —Ed.]
     