Scarborough v. . Lyrus

1 N.C. 798

• Court: Court of King's Bench
• Decided: July 5, 1793
• Status: Published

Opinions

Talbot, Dr., showed the bill by which Lording Berry had become proprietor of the vessel, and will be reputatus.

Hitcham. This is the supposition of the libel, which you made for your own benefit. I conceive it is agreed on both sides that if the master pawns the vessel beyond sea, in this manner, the owner is bound, provided that it be for things that come to the use of the vessel; but if the things do not come to the use of the vessel, the owner is not bound. This was adjudged in 39 El., Watson v. Jackson. Watson appointed a factor in Bayonne, and there the vessel was pawned for bottomry money, which was spent in repairs. The case was argued fully by civilians, and it was resolved that the owner was bound, and no prohibition was awarded. But if the factor had done that which he ought not to have done, the owner would not have been bound. But if the party does not plead this, but goes on and examines witnesses, as here, the default being in him, he shall not come here and make a suggestion of that which he might have pleaded in order to obtain a prohibition. For the libel is a good ground.