BOX 



liquors running out through the dcfcA of the caflcs, ihy 

 goods heating and fermenting by length of time, &c. ; nor 

 is the lender h'able for the ait of the owners or mailer of a 

 (hip, as if the voyage be changed by order of the owners, or 

 if alofs happen by the barratry of tlie mailer, or by the mil", 

 conduft of the merchant. In thefe cafes ilic liorrower is not 

 difcharged, except by expreis llipuhition, which fliall render 

 the lender liable for every lofs not occafioued by the aft of 

 the borrower. Nor is the lender halile for anv lofs by 

 fmuggling, which occafions a forfeiture of the ihip, and a 

 con filiation oi the goods, unkfs he was privy to it. In 

 England, if the money were lent to be employed in a trade 

 prohibited by law, thecoiitracl would be void ; and tlie fum 

 lent could never be recovered from the borrower, even 

 thoLiiih no lofs had happened. The lender, like an infurer, 

 is only anf.verable for lodes that happen wilhin the time 

 and place of the iif!-c, fpccified in the contrafl ; and, there- 

 fore, if the fi\ip deviate from the voyage, without neccITitv, 

 neither the lender nor the infurer will be liable to any lofs 

 that may afterwards happen. (See Insuk ANcr-,.) If the 

 (hip be prelfed into the king's fervice, this wili excufe a de- 

 viation ; but if tile borrower allege a deviation, this mull 

 be explicitly denied. A change of the (hip, witliout neceflity, 

 difcharged the lender. Monty is generally lent for the 

 whole voyage, outward and homeward ; or for either fcpa- 

 rateK ; or for a limited time. The contrail ufually fpeci- 

 fies the commencement and end of the rilk ; and any misfor- 

 ttine, happening before or after, is at the rifl< of the bor- 

 rower. If the voyage be defcribed in the bond, but the 

 time of the commencement and end of the rifle be not fpcci- 

 fied, the rifle, as to the Ihip, (hall commence from the time 

 of her fetting lail, and continue till (he anchors in fafety at 



■ her port of dellination ; and as to goods, from the time of 

 their being (hipped till they are fafely landed. When the 

 loan upon goods is both for the outward and homewaid 

 voyages, the lender continues liable to the rilk, during the 

 homeward voyage, on the goods by which thofe have been 

 replaced on which the money was lent. 



Between mfurance and bottomry there is this difference ; 

 that an infurer, independently of previous ftipulation to the 

 contrary, is liable to the charge of particular average, 

 whereas, a lender without exprefs ftipulation is exempt 

 from it : but, by the general law of merchants, in cafe of 

 grofs or general average, the lender fliall contribute to dif- 

 charge the borrower ; and it is maintained by fome writers, 

 that the nature and object of the bottomry contrafts feem 

 to require, that the lender Ihould be liable for general aver- 

 age. Lord Mansfield, however, as we have already ob- 

 ferved, is of opinion, that, by the law of England, 

 tliere is neither average nor falvage upon fuch contrafts; 

 and in this opinion lord Kenyon concurs. But ferjeant 

 Marlhall obferves, that he has not been able to difcover any 

 decided cafe, or authority in the law, to warrant tliis doc- 

 trine. He alfo diffents from another learned writer, (Park,) 

 who thinks, that the Hat. 19 Geo. 11. c. 37. § 5. which 

 provides, that the benefit of lalvage (hall be allowed to the 

 lender, on E?ft India voyages, conclufively proves, that 

 there was neither average nor falvage upon bottomry con- 

 trafts at common law. Mr. Marlhall is of opinion, that 

 this itatute has not introduced any new principle into the 

 law, either of infurance or bottomry contrafts ; but merely 

 rellored them to their original and proper ufe, from which 

 a fpirit of gaming had perverted them. Nor can he admit, 

 that, becaufe the ftatute gives the benefit of falvage to the 

 lender upon Eaft India voyages, he was not therefore en- 

 titled to this at common law. But admitting this to be the 



cafe, does it hence follow, that he was not hable to general 



B O T 



average at common law ? The ftatute makes no mention of 

 general average. It has been determined, however, that if 

 an iiifurance be made in England, upon a refpondentia in- 

 tcrcft, upon a foreign fliip, and it appears lliat the lender is 

 liable, by the law of the country to which the (liip belongs, 

 to contribute to a general average, the undrr-writers upon 

 the pohcy will be liarile for fuch contribution. 



As the ftatute nj Geo. 11. c. 17. gives the benefit of 

 falvage to lender? on bottomry, and refpondentia fccnritics, 

 rtftriftcd to Kaft India voyages, it has been a fubjeft of 

 inquiry, whether, before that aft, the lender upon any 

 voyage was entitled to the benefit of falvage. By the ge- 

 neral law of merchants, the event upon wliich the borrower 

 is difcharged, is the total lofs of the ft»ip or goodi, upon 

 which the money is lent, in confequcnce of the perils men- 

 tioned in the contract. The borrower is hound to pay 

 principal and marine iiUereft, provided the fliip or goods, 

 on which the money is lent, arrive at its deftincd port, 

 however damaged or depreciated by the peiils of tlie lea ; 

 nevi-rthelefs, if part (hould be captured or loft, the bor- 

 rower is only bound to pay in proportion to what remains. 

 If the fliip be loft, and the goods faved, the contraft re- 

 mains in force, and the borrower becomes liable, provided 

 another fliip can be procured to convey the goods to the 

 place of their deftination. But for the cxpence of this 

 other velTel, the lender is accountable ; and if no other can 

 be procured, the borrower will be difcharged, on account- 

 ing to the lender for the proceeds of the goods faved. By 

 the law of England, according to the opinion of Lord 

 Mansfield, already cited, " there is neither falvage nor aver- 

 age upon bottomry contrafts :" however, without the be- 

 nefit of falvage, this contraft muft partake, in a great de- 

 gree, of the nature of a wager, even whtn the money is 

 lent upon goods on board, of equal value. In cafe of a 

 total lofs of the (hip, the lender lofes all, though all the 

 goods are faved. Blackft. Comm. vol. ii. p. 457, Mar- 

 lhall on the law of Infurance, vol. ii. b. ii. p. 633. 



Bottomry, bill of, is a contraft between two perfons, the 

 one borrowing, and the other lending a fum of money, by 

 which the borrower, fetting forth his intention to make a 

 voyage in a certain (hip therein named, acknowledges the re- 

 ceipt of a certain fum of money from tlie lender, on this 

 condition, that if tlie fliip does happily perform her voyage, 

 without any dilafter by enemies or otherwile, then he is to 

 reftore that fum to the lender, with an additional fum, 

 therein exprcfled, for the intereft, within a certain time after 

 his return : but that if the fliip be loft, 01 taken by enemies 

 or pirates, then the perfon of the borrower to be for ever 

 difcharged, and the lender to bear the lofs. For the form 

 of fncii a bill by deed, and when the (hip is to go to leveral 

 ports, fee Marfliall's Treatife on the Law of Infurance, 

 vol. li. Appendix, p. 718. See Bottomry. 



EOTTONI, Albertus, \x\ Biography, of an illuftrious 

 family, originally from Parma, was born at Padua, in the 

 early part of the l6th century. After paffing through the 

 ufual fehool education, in which he dilUnguifhed himfelf, 

 he applied to the ftt(dy of medicine, took the degree of 

 Doftor, and was foon after advanced to the chair of pro- 

 feflbr in that faculty, vvhich he filled many years, with fin-' 

 gular credit. He died at a very advanced age, in 1596, 

 leaving behind him, Haller lays, an immenle property. 

 He pubhfhcd, " De vita conftrvanda," Patav. 11582. 4to. 

 " De moibij nniliebribus," IJ85, reprinted in the collcftions 

 of Bauhine and of Spachius. " Methodi medicinales dune, 

 in quibu? legitima medtndi ratio traditur." I'rancof. i -595. 

 8vo. For the titles of other publications bv this author, fee 

 HaUer Bib. Mtd. Eloy. Dift. Hift. 



BoTTONI, 



