We will now consider the several claims of different persons who have loaned money upon bottomry or respondentia. As a general rule, the creditor who is prior in time is entitled to a priority of payment. But when the loan is for the necessities of the voyage, as when the expedi tion of a ship is at stake for want of finding, the last money on respon. dentia-he who last lent, has a preference in payment over others, if his loan was essential to the prosecution of the voyage, on the principle that the last loan furnished the means of preserving the things hypothecated, and as without it the former lenders might entirely have lost their securities. But the burden of the proof is here thrown upon the party who seeks to establish a preference in payment; as, unless it be established that the last loan was essential for the preservation of the vessel and cargo, the first security will be preferred, like the first mortgagee of land.*

When a vessel, being in distress on its voyage, is driven into port to make repairs, or to procure supplies, the lender of the last money ought to have the preference before prior hypothecations, because the money was given for their common safety and benefit.

By the ancient ordinances of Bilboa, it was provided that when a person who had lent money on the voyage at bottomry, and the voyage or term stipulated had ended, and through omission or other causes did not seek to recover it, but suffered the loan to remain at the same bottomry, and afterwards another person should lend money on the same subject matter of the hypothecation for another voyage, that the last person who lent his money should be preferred to him who had given it for the antecedent voyage.t

The next subject that we will consider, is that of loans upon gaming or wagering agreements.

By the laws of England, gaming and wagering agreements are not void in law, unless they are contrary to public policy, to the public peace and justice, or of an immoral nature, or calculated to hurt the feelings or affect the interest of third persons who are innocent. The courts, however, have frequently reprehended such contracts, and expressed their regret that they have ever been sanctioned.‡

But the English parliament, in the fourteenth year of the reign of George III., chap. 48, passed an act that no insurance should be made on the life of any person, or any other event wherein the person for whose use or benefit, or on whose account such policy shall be made, shall have any interest by way of gaming or wagering. This act covers all cases of marine policies made upon a gaming or wagering consideration. The Revised Statutes of the State of New York have provided that all wagers, debts or stakes, made to depend upon any race, or upon any gaming, by lot or by chance, casualty, or unknown or contingent events whatever, shall be unlawful, and all contracts for or on account of any money, or property, or thing, in action so wagered, bet or stakes shall be void.§

This statute, in terms, is so broad, that it covers all the various forms of marine insurance, whether upon bottomry, respondentia, or simple insurance, provided it is tainted with gaming and wagering. Nevertheless, contracts made in good faith, for the security or indemnity of the party insured, and contracts on bottomry or respondentia, do not fall within the prohibition of the statute.

1 Dodson's Reports, p. 201. Chitty on Contracts, p. 496.

+ See Ordinances of Bilboa, Chap. 24, Sec. 7. § New York Revised Statutes, p. 666.

The bona fides of the transaction is a question which will be determined by the circumstances of each case, as it arises in the course of commercial business. When a loan is effected on respondentia on goods which are not to be exposed to the perils of the sea, this is a gaming contract or a simple mortgage, and if a loan has been effected on goods above their value at the place from which they were carried, and the goods are afterwards lost on the voyage by the perils of the sea, the lender will be entitled to recover the money loaned, and maritime interest.

The ordinances of Bilboa provided, that in case of the loss, the shipper who had taken money at bottomry upon goods should justify that he had them really loaded on shipboard for his account to the full amount of the money taken up; and these ordinances also forbid money to be taken upon goods loaded which exceeded the value at the port where the risk should begin to be run, upon the penalty that the borrower should pay the sum loaned, and its premiums, though the loss of the goods hypothecatedshould happen.*

The ancient marine ordinances of Koningsburgh prohibited all insurances on wagers or gaming agreements, expected gains, profit or freight moneys, seamen's wages, as of no effect. So did the ordinances of Amsterdam, Antwerp, Copenhagen, Rotterdam and France, prohibit insurances upon gaming and wagering agreements, and upon imaginary, uncertain or expected profits. And the ordinance of Koningsburgh declares. that, in case of a person, from an eager desire of gain, should run the risk of insuring ships or goods to a greater sum than their EQUITABLE value, he should be severely punished, according to the circumstances; and the insurance should be void, and the premium void to the insurer.

The ancient Spanish ordinances of Seville and Cadiz required that the goods hypothecated upon an insurance, and upon a respondentia loan, should be numbered and marked as in margin of the policy, and the goods insured or hypothecated were to be registered in the King's register before the vessel sailed, and so were the forms of the policies. The form of a respondentia policy at Bilboa provided the lender took upon himself the risks by sea of certain goods, which were to be put on board a certain vessel, and that there were so many pieces, boxes, or whatever else there might be, of goods, with certain marks, put into the margin of the policy; and the form of the contract was, that the borrower warranted the goods to be worth more than the sum of money loaned upon them.

We will quote another authority in regard to the illegality of wagering or gaming contracts in marine policies. This is from a decision in the Supreme Court of the State of Massachusetts. Chief Justice Parker, in delivering the opinion of the court, observed that it would seem a dis. graceful occupation of the courts of any country to sit in judgment between two gamblers, in order to decide which was the best calculator of chances. There could be, said the learned judge, but one step of degradation below this, which is that the judges should be the stake-holders of the parties.

Franciscus Roccus, a Neapolitan writer on insurance and marine law, in 1708, declares that when there is no risk, there can be no contract of insurance; for the risk is material to the contract, in whatever form the contract may be found. Indeed, wagering and gaming policies are condemned by all European nations at the present day as illegal and void.

See Ord. Bilboa, Chap. 24, Sec. 4 and 11. † See Ord. Bilboa, Chap. 25, Sec. 16.

Art. X. THE MERCHANT PATRON OF THE FINE ARTS.

IN November, 1844, the Hon. Thomas G. Cary, an eminent merchant of Boston, delivered a lecture before the Mercantile Library Association of that city, in which, besides inquiring into the causes of frequent failure among men of business, he endeavored to show that the encouragement of the fine arts, in a republic, depended on the security of property. It is not our purpose, at this time, to review the lecture of Mr. Cary, but merely to make a few extracts, principally referring to a merchant of New York, who has done something for the fine arts in this country, and who be queathed a beautiful example in his life, for the imitation of the Man of Trade, and, indeed, all who grow up under a government like ours.

"Instances can be adduced to show that, even in countries where the arts have been brought to the highest degree of perfection, genius has been compelled to struggle with harassing want; and others can be found which indicate that, even among us, the taste, the liberality, and the ability that are necessary for the reward of the artist, have already made their appearance, and given promise of vigorous growth. One instance on each side will serve as an illustration.

"It is said that the celebrated painter, Coreggio, in Italy, received but forty ducats for the picture of Night, (or Dawn,) which forms, now, one of the chief attractions in the great gallery at Dresden; and that such was his disappointment and grief at the inadequate price, and the inconvenient mode of payment which he was forced to accept for another of his greatest productions, that he died, shortly afterward, in misery.

"About twelve years since, a favorite American artist who was then pursuing his studies in Italy, received from Mr. Luman Reed, a grocer in New York, the dimensions of a room in the house which he was then building for himself, with a request that he would prepare to fill the panels with such paintings of his own as he should design, for the sum of three thousand dollars. The painter was just then perplexed by accounts of pressing want from those who were dependent upon him at home, and had found himself obliged, with deep regret, to prepare for an immediate return to this country. The magnitude of the commission which he then received, and the liberality of the terms, at once relieved him from difficulty, and enabled him to remain in Italy as long as he had intended, for the purpose of studying the models of the great masters there; and when the work which he was then desired to undertake, was completed, the three thousand dollars had been extended to five thousand. Here, then, was an instance of such support to the fine arts as they are likely to receive in the United States.

"It is very probable that for the same sum of money, pictures of greater merit, and certainly of more celebrity, might have been purchased from the works of the old masters. But here was vital succor to the living artist, encouragement to continue his efforts, when it was most acceptable. It was such aid as would have gladdened the heart of Coreggio; perhaps have prolonged his life, and enlarged the number of the treasures which he left to the world. It was an act corresponding to what is called patronage in other countries; and yet it was not patronage. It was free from all claim of the irksome deference that is usually felt to be due to the patron. It was performed in the spirit which cordially acknowledges a full equivalent, in the work, for the price paid; and which leaves the spirit of the artist unshackled by dependence. It was the act, too, of one whose life, as I know, from personal acquaintance and observation, was in keeping with the spirit of it; and I avail myself of this opportunity to bear testimony to his worth, and to present his character for imitation.

"Mr. Reed was a native of Connecticut, but engaged in business in New York. By industry, perseverance, and steady adherence to sound principles of action, he became one of the foremost in the highly respectable class to which he belonged. He grew gradually rich; and was, at length, enabled to build for himself an expensive house in an eligible situation, and to indulge the taste for beauty that

seemed natural to him, in ornamenting it. His interest in the arts, as it grew, was accompanied by sympathy for the artist. I had known him well, myself, during a residence of ten years in New York, and was surprised one day by a visit from him in Boston. After a cordial greeting, I inquired after the state of the tea-market, which had been the great field of his success. He told me, with a smile. that, although he was as active there as ever, he had come on other matters; and that he wanted my aid to procure for a young artist whom he wished to encourage, permission to copy, at the Athenæum, the original sketch by Stuart of the head of Washington, which is preserved by the trustees with particular care; meaning, he said, to present the copy to a public society in New York. The permission was readily obtained, and I have since understood that, after that was arranged, he went into the tea-market here with sufficient advantage to provide a liberal compensation for the young artist while he was at work; thus making trade subservient to taste. He died shortly afterward, in the prime of life, leaving a collection of paintings, engravings, shells, and other objects of beauty and interest, altogether so valuable, that it is proposed to make them the commencement of a public gallery in New York; and leaving, too, an establishment in business conducted on principles so secure that it has been a school of industrious success to younger men, who owe their prosperity mainly to him.

"We have much to do, no doubt, before we can raise the standards of taste among us to the highest elevation; but, whatever may be the comparative merit of the collection that I speak of, it serves as proof of the point that we wish to establish. As the powers of the artist are confined to no one class, but are occasionally developed in all, so the love of beauty in color, in proportion, and expression, exists everywhere among us, and seeks gratification as the means of indulging it are found. Its strength will depend on the preference that we may cherish for objects really deserving of admiration, over the indulgences of coarse and sordid inclinations. But its culture has commenced, and with good promise. Beside the readiness with which the works of Allston and other artists have been purchased, we have recently had additional evidence of this in our own community. "Owing to the growth of Boston, and change of character in some parts of it from that of quiet residence to the bustle of business, it lately became necessary to raise $75,000, in order to remove the Athenæum from where it is, to a more eligible situation. As the capitalists among us had made large donations to the institution heretofore, it was thought but just to make an appeal to the public now, and ascertain whether a spirit exists, in the community at large, to support such an institution; and it was decided that no further donations should be asked for, but that shares should be offered for sale. They have all been taken. The money was provided with ease, by the subscriptions of various classes, comprising the mechanic as well as the man of fortune; and an intimation is given that more can be had, if desired, from those who are willing to receive payment for what they advance, in the right of access to books, and to a gallery of paintings and statuary.

"The fine arts, then, are likely to receive such support among us, that no egregious failure in respect to them will be eventually charged upon us, if we are likely to have the means to encourage them."

The address of Mr. Cary, from which the foregoing paragraphs are extracted, is replete with interesting matter of a commercial character, and we intend to embody in a future paper that portion of it which refers to the causes of frequent failure among men of business. The author, a gentleman of liberal education, has devoted a large portion of his life to the multifarious pursuits of commerce. Soon after leaving the halls of Harvard University, at Cambridge, he became a successful merchant, and was, in the palmy days of the Bank of the United States, a director in that institution. He is, at the present time, a director in the Franklin Bank in Boston, the treasurer of the Hamilton Manufacturing Company at Lowell, and is, we believe, largely interested in its manufactures.

MERCANTILE LAW CASES.

NOTES-ENDORSERS-POWER OF ATTORNEY.

In the Superior Court, Judge Vanderpoel presiding, New York, March 11th, 1845. Charles A. Jackson vs. John Q. Aymar and Philip Embury, executors of Pexel Fowler.

This was an action on a note endorsed in the name of Pexel Fowler by Jacob D. Fowler, in the year 1836. It appeared that in the year 1836, Pexel Fowler gave a power of attorney to J. D. Fowler, to endorse his name on notes, which power of attorney was recorded in the North River Bank, and plaintiff now sought to recover on the ground that under such power of attorney Pexel Fowler was liable for the notes endorsed by J. D. Fowler. For the defence it was shown that the goods purchased by J. D. Fowler, and for which that note was given, were not purchased for Pexel Fowler, but for J. D. Fowler himself, and that the power of attorney given him by Pexel Fowler, only contemplated that he might endorse notes for transactions in which Pexel Fowler was interested. In reply to this it was shown that J. D. Fowler was in the habit of endorsing notes to a large amount, for transactions in which Pexel Fowler had no interest whatever, and that Pexel Fowler knew of such endorsements and ratified them, or at least some of them. In answer to this it was shown by defendant that within a period of about eighteen months the house of Fowler, Gordon & Co. put in circulation, in different banks of this city, notes endorsed by J. D. Fowler in the name of Pexel Fowler, to the amount of $640,000; and the defendant relied on this fact as showing that Pexel Fowler must have been ignorant of the extent to which his name was endorsed by J. D. Fowler; as, had he known it, it was not supposed he would have permitted or approved it.

The Court charged the jury that under a decision of the Court of Errors a written power of attorney was only intended to apply to Pexel Fowler's own business, and could not authorize endorsements for purchases except such as were made for Pexel Fowler, and, under that decision, unless the plaintiff proved that the purchase was made for the benefit of Pexel Fowler, it did not come within the written power of attorney. But in this case the plaintiff did not rest his claim on the written power, but alleges that J. D. Fowler had an unlimited license from Pexel Fowler to endorse notes in his name, and that every person dealing with him had a right to suppose so. It is true that although the written power to endorse would not authorize J. D. Fowler to do so only to a certain extent, yet if he was in the habit of using the name of Pexel Fowler, with the knowledge of the latter, the plaintiff has a right to recover, although the goods were sold for J. D. Fowler's own benefit. Verdict for plaintiff, $3,869 06, being the amount claimed. For plaintiff, Messrs. Sandford and Cutting. For defence, Mr. Dillon.

ACTION OF ASSUMPSIT-COMMISSION MERCHANTS.

In the Court of Common Pleas, Boston, Mass., before Judge Ward. Kentgen vs. Jaszynsky.

This was an action of assumpsit upon an account annexed, containing charges for the proceeds of goods consigned by the plaintiff to the defendant, a commission merchant in Boston; the plaintiff claiming a balance of about $175. The defendant filed an account in offset, claiming a balance due him of about $45; the account including charges for commissions on goods consigned to the defendant for sale, and returned unsold to the plaintiff at his request,-also charges for insurance on goods consigned; and evidence was offered to prove the custom of merchants to make such charges.

The mutual accounts of the parties, containing several items in dispute, were referred to N. C. Betton, Esq., as Auditor, who made his report in favor of the defendant for the full amount claimed by him in offset.

The plaintiff thereupon conceded all the items as allowed in the Auditor's re