tains intrinsic evidence of extensive and accurate research, as well as of clear and solid judgment. Toullier, though already quite voluminous, has not as yet touched on the commercial code. On the law of insurance, I would select and recommend Boulay Paty as the latest and best writer. He has explained and illustrated every part of the code, but devoted nearly half of his voluminous work to the single head of insurance, and he has treated the subject very much in the style of Emerigon. He has trodden in his footsteps, adopted his copious learning, applied his principles with just discrimination, and gives us a complete treatise on every branch of insurance, according to the order and under the correction of the new code.

The first notice of the contract of insurance that appears in the English reports, is a case cited in Coke's Reports, and decided in the 31st of Elizabeth; and the commercial spirit of that age gave birth to the statute of 43d Elizabeth, passed to give facility to the contract, and which created the court of policies of assurance, and shows by its preamble that the business of marine insurance had been in immemorial use, and actively followed. But the law of insurance received very little study and cultivation for ages afterwards; and Mr. Park informs us that there were not forty cases upon matters of insurance prior to the year 1756, and even those cases were generally loose nisi prius notes, containing very little information or claim to authority. From that time forward the decisions of the English courts on insurance assumed new spirit and vigour, and they deserve to be studied with the utmost application. When Sir William Blackstone published the second volume of his Commentaries, Lord Mansfield had presided in the Court of King's Bench for nearly ten years; and in that short space of time the learning relating to marine insurance had been so rapidly and so extensively cultivated that he concluded, that if the principles *set- *350 tled were well and judiciously collected, they would form a very complete title in the code of commercial jurisprudence. Mr. Park (now a judge of the Court of King's Bench) took the suggestion, and published his System of the

6 Coke's Rep. 47. b.

Law of Marine Insurances in 1786, and he had the advantage of the labours of the whole period of Lord Mansfield's judicial life; and the decisions are collected and digested with great copiousness, erudition and accuracy. He extracted all that was valuable from the compilations of Malynes, Molloy, Magens, Beawes and Weskett; and he had the good sense and liberality to enrich his work with the materials of those vast and venerable repositories of commercial learning, the Le Guidon, the foreign ordinances, and the writings of Roccus, Bynkershoeck, Valin, Pothier and Emerigon.

About the time that Park published his treatise, the Elements of the Law relating to Insurances, by Mr. Miller, a Scotch advocate, appeared at Edinburgh. He evidently compiled his work without any knowledge of the contemporary publication of Mr. Park; and though the English cases are not so extensively cited and examined by him, he supplied the deficiency by a digest of cases in Scotland; and he appears to have been equally familiar with the continental civilians, and to have discussed the principles of insurance with uncommon judgment and freedom of inquiry. Since the publication of Miller's treatise, no work appeared in Scotland on the subject of insurance, until Mr. Bell took a concise view of that, as well as of other maritime contracts, in his very valuable Commentaries; and he states, that since the period of 1787, the mercantile law of Scotland has been making rapid strides towards maturity.

The treatise of Park had passed through five editions, when Mr. Marshall published, in 1802, his Treatise on the Law of Insurance. It contains a free and liberal discussion of principles, and it is more didactic and elementary in its instruc

tion than the work of his predecessor, but it abounds *351 *with citations of the same cases at Westminster, and a reference to the same learned authors in France and Italy. Mr. Park is entitled to the superior and lasting merit of being the artist who first reduced the English law of insurance to the beauty and order of a regular science, and attracted to it the rays of foreign genius and learning. The American edition of Marshall, by Mr. Condy, is greatly to be preferred to any other edition; and even that improved work is now in a considerable degree superseded by Mr. Phillips' Treatise on the Law of Insurance, the first volume of which

was published at Boston in 1823, and the second in 1834, and a new and improved edition of the entire work, in two volumes, in 1840. This author has very diligently collected and ingrafted into his work not only the English cases, but the substance of all the American cases and decisions on insurance, which had been accumulating for a great number of years. In that view it is an original work of much labour, discrimination and judgment, and of indispensable utility to the profession in this country.a

The treatise of Mr. Benecke, on the Principles of Indemnity in Marine Insurance, may be considered as an original work of superior merit, written by a business man, on the most useful and practical part of the law of insurance. It contains great research, clear analysis, strong reasoning, and an accurate application of principles, and was intended for the use of the merchant and ship-owner, as well as of the practising lawyer. The work was the result of much study, research and experience; and the public expectation of its value, from the well-known character and ability of *the author, had been highly raised, a long time be- *352 fore the publication.b

In 1828, a new Treatise on the Law relating to Insurance, by David Hughes, Esq., of the inner temple, was published at London. It goes over the same ground already fully and sufficiently occupied by his two eminent predecessors, Park and Marshall; and with very scanty reference to any foreign authorities, it cites all the modern English cases. It is a plain, methodical and correct treatise, and must be valuable to an English lawyer, so far as it has incorporated into the work the substance of the recent decisions not to be found in the former works. Beyond that information, the treatise is entirely superfluous.

The treatise of Mr. Benecke was published in 1824, and yet, in Jacobsen's works on the Laws of the Sea, published at Altona, in 1814, he speaks of this treatise, by its title, as being in preparation by a master-hand. This treatise of Mr. Benecke is said to be only an inconsiderable portion of his great original work on Insurances and Maritime Loans, published at Hamburgh, between 1805 and 1810, and translated into Italian, and published at Trieste in 1828. It is the most comprehensive and perfect work on insurance and maritime loans, says Mr. Duer, that has yet appeared. Lecture on Representations, 135. (1)

(1) Since the last edition of this work, the second volume of Mr. Duer's Treatise on Marine Insurance has been published. It is to be hoped that this learned lawyer and accomplished scholar, now elevated to the bench of the New-York Superior Court, may find time, amidst his important and multifarious judicial labours, to complete soon his most able and valuable treatise.

LECTURE XLIX.

OF MARITIME LOANS.

THE Contracts of bottomry and respondentia are maritime loans of a very high and privileged nature, and they are always upheld by the admiralty with a strong hand, when entered into bona fide, and without any suspicion of fraud. The principle on which they are founded and supported is of great antiquity, and penetrates so deeply into it, that Emerigon says its origin cannot be traced. It was borrowed by the Romans from the laws of the ancient Rhodians, and it is deeply rooted in the general maritime law of Europe, from which it has been transplanted into the law of this country. The object of hypothecation bonds is to procure the necessary supplies for ships which happen to be in distress in foreign ports, where the master and owners are without credit, and in cases in which, if assistance could not be procured by means of such instruments, the vessels and their cargoes must be left to perish. The authority of the master to hypothecate the ship and freight, and even the cargo, in a case of necessity, is indisputable. (1) The vital principle of a bottomry bond is, that it be taken in a case of unprovided necessity, where the owner has no resources or credit for obtaining necessary supplies. If the lender knew that the

The Gratitudine, 3 Rob. Adm. Rep. 240. 267. The Hero, 2 Dods. Rep. 139. Case of the Duke of Bedford, 2 Hagg. Adm. Rep. 294. Vide supra, 173. Sea stores, particularly for the subsistence of passengers, are objects of a bottomry bond. 2 Hagg. Adm. Rep. 301.

b Vide supra, 171. The degree of necessity that will justify the master in

(1) If goods of a shipper be taken to discharge a bottomry bond, which the master had properly given, the owner of the vessel is liable for such goods, though he had refused to ratify the bond. Duncan v. Benson, 1 Wels. H. & Gordon's R. 537. See 8 Id. 644, where the decision was affirmed in Exchequer Chamber. But he is not liable for goods wrongfully sold by the master. Pope v. Nickerson, 8 Story's R. 465.

owner had an empowered consignee or agent in the port, willing to supply his wants, the taking the bond is a fraud; but if fairly taken under an ignorance of the fact, the *courts of admiralty are disposed to uphold such bonds, *354 as necessary for the support of commerce in its extremities of distress. And if the lender of money on a bottomry or respondentia bond, be willing to stake the money upon the safe arrival of the ship or cargo, and to take upon himself, like an insurer, the risk of sea perils, it is lawful, reasonable and just, that he should be authorized to demand and receive an extraordinary interest, to be agreed on, and which the lender shall deem commensurate to the hazard he runs.b

A bottomry bond is a loan of money upon the ship, or ship and accruing freight, at an extraordinary interest, upon mari time risks, to be borne by the lender, for a specific voyage, or for a definite period. It is in the nature of a mortgage, by which the ship-owner, or the master on his behalf, pledges the ship as a security for the money borrowed, and it covers the freight of the voyage, or during the limited time. (1) A

taking up money on bottomry for repairs, and that will justify the creditor in lending it, is examined with great learning and judgment in the case of The Ship Fortitude, C. C. U. S. Mass., August, 1838. See the Law Reporter, vol. i. No. 5. 3 Sumner's R. 228.

The Nelson, 1 Hagg. Adm. Rep. 169. Lord Stowell, in the case of The Gratitudine, 3 Rob. Adm. Rep. 271, 272.

For the historical learning on the subject of maritime loans, see Dig. 22. 2. De nautico fænore. Code, 4. 33. Ibid. Bynk. Q. J. Priv. lib. 3. c. 16. pp. 506. 509. Emerigon, h. t. c. 1. sec. 1, has collected all that the Roman law has said on the subject. The speeches of Demosthenes against Zenothemis, Apaturius, Phormio, Lacritus and Dionysodorus, relate to the fanus nauticum of the Roman law, or the bottomry contract of the modern commercial nations. See, in the American Jurist, No. 6. p. 248, an account of maritime loans in ancient Athens, taken from the treatise on the Public Economy of Athens, by the learned Augustus Boekh, Greek Lecturer and Professor at the University of Berlin. The goods were generally, and sometimes the vessel was pledged for the security of the loan, with maritime interest. See, also, Lord Stowell, in the case of The Gratitudine, 3 Rob. Adm. Rep. 267. The Alexander, 1 Dodson's Adm. Rep. 278. The Augusta, ibid. 283. The Hero, 2 ibid. 139.

(1) A British ship, whose master and crew had been murdered in a mutiny, went into a foreign port, where the British consul gave a bottomry on the ship: Bond pronounced for The Cynthia, 20 Eng. L. & E. R. 628.

Payment of bottomry bond into the admiralty, is a good defence to an action for the freight. Place v. Potts, 20 Eng. L. & E. R. 505.