Murray v. Lazarus. In this case there was a special agreement between the master and the respondents for the payment of their advances. They took from him a bill of exchange, drawn upon the appellants, for the amount of their advances and commissions. If this is to be considered a regular and ordinary bill of exchange, it was a substitution for any lien that might have existed, and must be considered a relinquishment thereof. But it is contended, that from the language of the bill, taken in connexion with the condition of the parties, it must be considered a lien on the freight in the hands of the appellants. If such is to be the effect and operation of this bill, it must be either as an hypothecation of the freight, or as a draft upon a specific fund amounting to an assignment of such fund. The bill is drawn by Thomas Hillyer, as master of the brig Hannah, on the appellants, payable to the order of Lawrence & Whitmarsh, five days after sight, for 531 dollars 55 cents, for value received in disbursements and repairs of the brig Hannah, with directions to charge the same to her account. It is these latter words that are said to give to this bill the operation of an hypothecation. In all other respects it is in the usual form of bills of exchange drawn in sets. I cannot think that the mere circumstance, of the nature of the consideration's being expressed in the bill, with directions to charge it to the account of the brig, should entirely change the character of the instrument. This was a very natural and proper course for the master, especially when drawing upon the consignees of the brig, that they might understand for what the bill was drawn, and that it was not a private transaction of the master. It is laid down by Abbot in his Treatise on Shipping, that there is no settled form for the contract of hypothecation, "but that, whatever be the form, the occasion of borrowing, the sum, the premium, the ship, the voyage, the risk to be ƒ Page 143. Murray v. Lazarus. borne by the lender, and the subjection of the ship itself as security for the payment, all usually are, and properly ought to be expressed." The bill in this case falls very far short of containing some of the most essential requisites; it does not in terms or by implication pledge the freight for the payment; the freight is not even named in the bill. There is no premium mentioned, nor any thing either in the bill or any of the proceedings showing that maritime interest was allowed. And indeed the contrary is shown by the proofs; for the account annexed to the libel contains the items which made up the amount of the bill, in which the usual commissions alone are charged upon the advances. But what is of still more importance, there is nothing showing what, or that any risk was to be borne by the respondents. The owners of the vessel are still liable for these advances. The libel does not even contain any allegation of an agreement in any manner, that the freight should be pledged for the payment of the advances; it only alleges, that the bill was taken as a voucher for the expenditures, and a mere mode of obtaining payment thereof; which payment was expected and intended to be made out of the freight, &c. This is no allegation of an agreement between the Master and the respondents, that it should be so paid; it is nothing more than the mere expectation and intention of the respondents. And there is no proof, giving the least colour to an inference, that there was any understanding between the parties that the freight should be pledged for payment of the bill. And the conduct of the respondents shows, that they did not so understand the transaction; for, on the 14th of April, they wrote to the appellants, that the vessel had put into Wilmington in distress, and that the master wanted advances for repairs, and proposed drawing in their favour on the appellants for the amount that would be required, and requesting to know whether such bill would be honoured. If it had been Murray v. Lazarus. understood that the freight was to be pledged for these advances, no such letter would have been written. The master having the right to hypothecate the freight, there could have been no necessity for writing at all to the appellants; but if any communication was made, it would have been to inform them of the hypothecation, if such had been the fact, and not an inquiry whether they would honour the master's draft. But before the answer of the appellants was received, the repairs were completed, and the brig had sailed, the master giving to the respondents the draft in question, dated the 25th of April. This draft was endorsed and sent on here, and dealt with as an ordinary bill of exchange, by presenting it for acceptance and payment, and on refusal, having it regularly protested. No part of the transaction will, therefore, warrant the conclusion, that any express hypothecation was agreed upon or intended by the parties. Nor is there any more foundation for considering this bill of exchange as a draft on the freight as a specific fund, and amounting to an equitable assignment thereof. No fund whatever is mentioned or referred to in the draft. And the direction to charge the amount of the bill to account of the brig, cannot certainly have the operation of an assignment of the freight. In whatever light, therefore, this case is considered, it appears to me that there is no specific lien on the freight for the advances for repairs. But that the respondents took the draft on the appellants as an ordinary bill of exchange, in payment for their advances; and whatever remedy they may have against other parties for the payment thereof, the appellants cannot be made responsible. The decree of the District Court, therefore, as to them, must be reversed with costs. Rabaud v. D'Wolf. RABAUD ET AL. v. D'WOLF. To deprive an American citizen of the right of suing in a Circuit Court, on the ground of his not being a citizen of any particular state, there ought to be very strong evidence of his being a mere wanderer, without a home. One proposed to the plaintiffs, in the presence of the defendant, to ship them a quantity of sugars belonging to him, in the defendant's hands, on receiving an authority to draw on the plaintiffs for the amount. It was thereupon agreed, that the shipment should be made, and the authority given, on the defendant's engaging by letter to ship the sugars. The owner of the sugars accordingly wrote a letter, addressed to the defendant, desiring him to ship the sugars on board such vessel as the owner might direct, consigned to the plaintiffs, and next day handed it to him. The defendant wrote "agreed to," under the letter, and signed his name beneath; upon which the authority to draw was given: Held, that the defendant's undertaking was an original part of the entire transaction, and that the consideration, moving from the plaintiffs to the owner of the sugars, which was not expressed in the letter, might be proved by parol, as it did not contradict the written agreement; and that the undertaking of the defendant required no consideration moving from the plaintiffs to him to support it. The declaration alleged an authority to draw, but not in writing, for 100,000 francs; the proof was a letter authorizing blank francs to be drawn for: Held, that this was no variance. The owner of the sugars becoming insolvent, wrote the plaintiffs, informing them, that the vessel which he had intended should take the sugars would not do so, and that they were at liberty to make any arrangements with the defendant for the interest of all concerned: Held, that this was an authority under which the plaintiffs could nominate a vessel, and that the defendant was bound to ship the sugars in such vessel, if he did not choose to appoint another. The sugars were to be shipped at New-York to Marseilles: Held, that the measure of damages, as against the defendant, was the value of the sugars in New-York at the time of his refusal to ship them according to his contract. THIS was an action of assumpsit on a promise of the defendant to ship to the plaintiffs, at Marseilles, a quantity of sugar. The declaration contained several special counts, in which the contract was variously stated; but those relied on at the Rabaud v. D'Wolf. trial stated it as follows: That David J. Rabaud, Andrew E. Belknap, and others, the plaintiffs, were merchants at Marseilles, in partnership, under the firm of Rabaud, Brothers, & Co.; and that George D'Wolf, of Bristol, Rhode Island, wishing to draw on them for 100,000 francs, James D'Wolf, jun. on the 15th of November, 1825, at the city of New-York, in consideration that the plaintiffs would authorize such drawing, promised to ship, for the account of said George D'Wolf, on board such vessel as he should direct, 500 boxes white Havana sugar, consigned to the plaintiffs at Marseilles: That in consequence the plaintiffs gave the authority to draw bills to the amount of 100,000 francs, which were accordingly drawn and duly paid: That George D'Wolf afterwards named a vessel lying at New-York and ready to receive the sugar, on board of which the defendant ought to have shipped it, according to his promise, but which he refused to do. The defendant pleaded the general issue. On the trial the plaintiffs read the deposition of George D'Wolf, taken under a commission, proving the following facts: The plaintiffs were partners as stated in the declaration, and the plaintiff, Belknap, was also agent for the house in the United States. On the 15th of November, 1825, George D'Wolf and Belknap being then in the city of NewYork, the former having between 300 and 400 boxes of Havana sugar in the hands of the defendant, proposed to the latter to increase the quantity to 500 boxes, and ship them to the plaintiff's house at Marseilles, on receiving an authority to draw on account of the same to the extent of 100,000 francs. At this interview, which was in the street, the defendant was present. Another interview, an hour afterwards, at the defendant's counting-room, was proposed by Belknap, who was then engaged. At this interview, Belknap observing that the advance requested was heavy, a calculation was made by the |