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![handle is hein.slavery/ssactsengr0134 and id is 1 raw text is: I MOORE, 5 HEATHORN V. DARLING [1836]
[5] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.
THE SHIP, ELIZA.
JOSEPH LIDWELL HEATHORN,-Appellant; ANDREW DARLING,-Respondent
[May 30; July 2, 1836].
The party taking a Bottoinry Bond from the master of a vessel requiring supplies
for the further prosecution of her voyage, is bound to ascertain whether such
supplies can be procured on the personal credit of the owner, before resort
is had to a bottomry bond as security for their amount.
Semble, where a party has the means of knowing a fact, he is bound to show
that he exercised reasonable diligence to ascertain it.
This was originally a cause of bottomnry, civil and maritime, promoted and
brought in the High Court of Admiralty by Andrew Darling of St. Helena, merchant,
the legal holder of a bond of bottomry on the ship Eliza, her tackle, apparel and
furniture, bearing date the 8th October 1833, for £520 8s. 6d., and maritime in-
terest thereon at 7 per cent., making together the sum of £559 9s. 1d., which bond
was given by Henry Thomas Marshall, the master of the ship, to Saul Solomon, of
St. Helena, merchant, for provisions, stores and other supplies furnished, and
advances of money made by him, to enable the ship to proceed on her voyage from
St. Helena to the port of London; Saul Solomon having afterwards endorsed over
the bond to the respondent Andrew Darling, who became and was the legal holder
thereof.
The circumstances of the case were as follows:
The ship belonging conjointly to Joseph Lidwell Heathorn, the appellant, and
John Samuel Groves, the former master, left London in the month of March 1832,
with convicts under the command of Groves, on a voyage to New South Wales and
Singapore, and [6] back to London, Marshall, the late master, being at such time
chief meate.
Having landed the convicts at New South Wales in the month of September
following, the vessel proceeded in ballast to Singapore. On the 27th of November,
whilst at sea, Groves the master died, and Marshall then took the conunand; and
having arrived safely at Singapore on. the 5th January 1833, the names of the
said Henry Thomas Marshall were duly endorsed on the ship's register. An assorted
cargo of merchandize, and three passengers having been then taken on board, on
the 3d June following she sailed from Singapore on her return to London, and on
the 4th October arrived at St. Helena. Being in want of some provisions and
stores, for the further prosecution of her voyage, Lewis Gideon, the agent at St.
Helena of Heat-horn, the themi sole surviving owner of the ship, had an interview
with Marshall the master, and stated his readiness to supply the requisite provisions
and stores, and to draw a bill on Heathorn for the amount, as he had been accus-
tomed to do. It appeared, however, that Saul Solomon, of St. Helena, persuaded
Marshall that as master he had a -right to make his election, and further persuaded
him to employ him, Solomon, to supply the stores, and give him a bottomry bond
for the amount. Gideon protested, but in vain., and in the result Marshall gave
Solomon a bond of hottomnry on the ship, freight and passage-money, for £520
8s. 6d. Gideon immediately sent information to Heathorn of the transaction,
who thereupon refused to pay the bond. It appeared that after the bond had been
given, Solomon assigned it to the respondent Andrew Darling, of St. Helena. It
appeared also that there was some ques-[7]-tion as to the nature and quality of the
stores not corresponding with those agreed to be supplied; and it was also alleged
that the quantity shipped was short of that charged for. The ship arrived in thle
port of London on 23d December 1833; and as Heathorn had refused to pay the
bond, proceedings were instituted in the High Court of Admiralty to enforce pay-
ment thereof.
The circumstances and particulars of the above transactions were duly set forth
in the Act or Petition, and subsequent pleading in the court below, and were
supported on either side by affidavits.
In support of the validity of the bond, the affidavit of Solomon stated, that at an
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