the lender fhall be liable for general average. The bor-
rower generally takes up the money because he has not
a capital of his own upon which he can carry on his
trade. Knowing that it would be impoffible for him to
repay the fum borrowed, but in the event of a fortunate
return, he means to run no risk, and agrees to part with
a large fhare of his profits, to be free from all personal
responsibility. But if he fhould be held liable to general
average, then, by taking up money in this way, he must en-
gage in a game of hazard, perhaps without being aware
of his danger, in which he may eventually be ruined.
It has been faid, however, by a very diftinguifhed
judge, that, "by the law of England, there is neither average
nor falvage upon bottomry contracts (a )." And this doctrine,
so far as it relates to average, has been fince adopted by
another noble perfon, no lefs eminent for his learning.
and abilities (6). I have anxioufly fought, however, but
fought in vain, to find any decided cafe, or authority
in the law, which could warrant this doctrine.—I cannot
agree with a learned writer (c) on this fubject, that the
ftat. 19 G. II. c. 37, § 5 (d), which provides that the
benefit of falvage fhall be allowed to the lender, on Eaft
India voyages, conclufively proves that there was neither
average nor falvage upon bottomry contracts at common
law. I never could look upon that act as having intro-
duced any new principle into the law either of insurance
or bottomry contracts. On the contrary, it seems to me,
after the best confideration I have been able to give the
fubject, that it merely restored them to their original
and only proper ufe, from which a fpirit of gaming had been
fuffered to pervert them. I cannot even admit that, be-
cause the ftatute gives the benefit of falvage to the lender
upon Eaft India voyages, therefore he was not entitled to
this at common law. As well might it be faid, that be-
cause the insurance of enemy's property, in time of war,

(a) Per Lord Mansfield in Joyce v. Williamson, sup. 652.— (b) Per Lord Kenyon at N. P. in Walpole v. Ewer, inf. 660.(c) Park, 423.-(d) Sup. 104.

If the infured upon a refpondentia interest

on a foreign ship

be obliged to contribute to a

has been occafionally prohibited by ftatute, therefore the infurance of enemy's property is a legal contract at common law (a).-But even admitting the inference, that because the statute gives the benefit of falvage to the lender upon East India voyages, therefore he was not entitled to this at common law; does it from thence follow that he was not liable to general average at common law? The ftatute no where mentions general average.

But whatever may be the true rule of law which ought to prevail on this fubject, it has been determined, that if an infurance be made in England upon a refpondentia intereft upon a foreign fhip, and it appear that the underwriters the lender is liable by the law of the country to which the fhip belongs, to contribute to a general average; the underwriters upon the policy will be liable for fuch contribution.

general average,

will be liable.

Walpolev.Ewer,

at N. P. after Tr. 1789, Park 423.

The decifion of a foreign court of competent jurifdiction is the best evidence to thew what the law of the country is.

Thus:-Where a respondentia loan on a Danish fhip and goods was insured in England, and an average lofs was fuftained upon the goods to the amount of 61. 15 s. per cent. to which the holder of the refpondentia bond was obliged to contribute. He brought his action against the Englib underwriters to recover the amount of this contribution.-Lord Kenyon, who tried the caufe, faid,"By the law of England, a lender upon refpondentia is not liable to average loffes; but is entitled to receive the whole fum advanced, provided the fhip and cargo arrive at the port of deftination. The plaintiff contends that as, by the law of Denmark, fuch lenders are bound to contribute to average loffes, according to the amount of their intereft, the infurer here muft anfwer to them. The Danish conful has proved that he received a judgment of the court of Copenhagen, the decretal part of which proves the law of Denmark to be as the plaintiff has ftated it. The opinions of several men of eminence in that country have been offered on each fide: But I reject them, because the folemn decifion of a court of competent jurifdiction is of much greater weight than the

(a) See this fubject fully considered, sup. book 1, ch. 2, § 1.

opinions

opinions of advocates, however eminent, or even the extrajudicial opinions of the most able judges. It seems as if, in this cafe, the underwriters were bound by the law of the country, to which the contract relates."--The jury found a verdict for the plaintiff (a).

(a) Vid. the case of Newman v. Cazalet, Beawes lex merc. 349, where an infured had been obliged by the judgment of a foreign court to pay a larger average contribution than by the law of England could have been demanded, but it appeared to have been customary in adjufting loffes to allow the whole of fuch contributions; Mr. Juftice Buller at N. P. ruled that if the ufage were clearly proved, it ought to govern.

CHAP. VII.

Whether the Lender be entitled to the Benefit of

Salvage.

The ftat. 19 G. THE provifion of the stat. 19 G. II. c. 37, which gives the benefit of falvage to lenders on bottomry and

II. c. 37, gives

the benefit of

ers on Eaft India voyages.

faivage to lend- refpondentia, being confined to Eaft India voyages, it may be proper here to enquire, whether, before that act, the lender, upon any voyage, was entitled to the benefit of falvage.

By the general law of merchants, the event upon which the borrower is difcharged, is the total lofs of the fhip or goods upon which the money is lent; provided this happen by the perils mentioned in the contract. Though the borrower is bound to pay the fum lent and the marine interest, in cafe the fhip or goods on which the money is lent arrive at the port of deftination, however damaged or reduced in value by the perils of the fea; yet if part fhould be captured or loft, the bor rower is only bound to pay in proportion to what remains (a). Thus, if 1000l. be lent on goods, the half of which are loft, the reft faved, the lender will lofe 500l. of his principal, and the borrower will pay remaining 500l. with the marine intereft upon that fum, If the fhip be loft, but the goods on which the money was lent are all faved, the contract will remain in force, and the borrower will be liable, provided another hip can be procured to convey the goods to the place of their deftination. But the charge of the other veffel will be at the expence of the lender, and if no other can procured, the borrower will be discharged on accounting to the lender for the proceeds of the goods faved.

(a) Pothier, h. t. Emerig. t. 2, p. 453. priv. lib. 3, c. 16.

the

be

n. 47; Valin, art. 11, 14, 17, h. t. Confult on this point Bynk. quæft. jur.

But,

it.

But, by the law of England, according to the opinion Lord Mansfield's opinion against of Lord Mansfield, which we have already had occafion to refer to (a), there is neither average nor falvage upon bottomry contracts; It must be admitted, however, that, without the benefit of falvage, this contract muft partake greatly of the nature of a wager, even when the money is lent upon goods on board of equal value. If there be a total lofs of the fhip the lender lofes all, though all the goods are faved.

(a) Sup. 659.

As to the infurance of bottomry and respondentia loans, vid. fup. 93, 94, 95, 223, 225.

As to the remedy of the lender, where the borrower becomes bankrupt, before the risk is ended, and the lender entitled to repayment, vid. fup. 631...