Thomas et al. v. Osborn.
tors all agree, that if one lend money to a master, knowing he has not need to borrow, he does not act in good faith, and the loan does not oblige the owner. Valin, art. 19; Emerigon, Con. à la Grope, ch. 4, sec. 8; and the older commentators cited by him. Boulay Paty Cours de Droit Com., tit. I, sec. 2, tit. IV, sec. 14; and see the authorities cited by him in note 1, p. 153.
To constitute a case of apparent necessity, not only must the respairs and supplies be needful, but it must be apparently necessary for the master to have a credit, to procure them. If the master has funds of his own, which he ought to apply to purchase the supplies which he is bound by the contract of hiring to furnish himself, and if he has funds of the owners, which he ought to apply to pay for the repairs, then no case of actual necessity to have a credit exists. And if the lender known these facts, or has the means, by the use of due diligence, to ascertain them, then no case of apparent necessity exists to have a credit; and the act of the master in procuring a credit does not bind the interest of the general owners in the vessel.
We now come to the application of these principles to the case at bar.
The freight-money earned by the Laura was applicable, and ought to have been applied, by the master, to the necessities of the vessel; the one-half, (after deducting port charges,) which belonged to himself, should have been applied to pay the wages of the crew, and obtain supplies for the vessel; the other half, which belonged to the owners, to paying for necessary repairs.
The amount of this freight-money actually earned and received was about $12,000. Besides this, the Laura had made two voyages to San Francisco, with cargoes belonging to Leach and to him, and Flint, Peabody, & Co., before the bills now in question were incurred. We hesitate to declare that a master, who takes a vessel on “a lay,” can use it to carry cargoes of his own. The practical difference to the owners is, that there can be no agreed rates of freight, and no such security on the cargo for its payment, as the marine law ordinarily provides, and as the owners may be reasonably considered to contemplate when they let the vessel. (Gracie v. Palmer, 8 Wheat., 605.) But this point has not been adjudicated on by the courts, nor does this case furnish any evidence of what the usage is in this particular. Waiving a decision of this question, it is, at all events, clear the vessel earns for the owners a reasonable freight by carrying cargo of the master; and, according to the evidence in this case, that reasonable freight must have been
