#### *Scarborough vs. Justus Lyrus.

Mich. 3 Car.

JUSTUS LYRUS brought suit against a vessed called The Negro, in the Admiralty court. Scarborough came *253in and pro interesse suo prætenso bailed the vessel. The case was that Lording Berry super altum mare borrowed of Justus- Lyrus £. 100, on bottomry, and bound the vessel. This bottomry is when money is borrowed on the keel of the vessel, and the vessel is bound for the payment of it: viz. if the money is not paid, the lender shall have the vessel. Scarborough bailed the vessel, and thereupon examined witnesses, and judgment was given against the vessel. Scarborough came into the King’s Bench and suggested that the said Lording Berry was not an officer of, nor had any thing to do with, the vessel, at the time of the supposed bottomry; but had before that time sold her to Scarborough in London, who afterwards sent her to sea, and Lording Berry pawned her, when he had nothing to do with her, but only happened to be where she was. Whereupon he prayed a prohibition. For he who has nothing to do with the vessel, shall not bind her to the payment of bottomry money, as Hitcham, the King’s Serj. said, but the bottomry is good and ought to be allowed, when the master or sailor pawns her for necessaries, and this binds the owner.

Talbot, Dr. shewed 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.

Jones, J.

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 life 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 vs. 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 examine 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.

Doderidge, J.

*If the master, purser, or factor, or he *255who on board of the vessel pretends to be the owner, borrows money for such a purpose, on bottomry, the owner is bound; although the money be not so employed. He has remedy against his factor, in whom he trusted. You cannot now alledge that the property was in you before.

C. J. concurred.

Jones, J. If the suit be in the Admiralty-Court, after sentence, you cannot have a prohibition, on a suggestion that the matter did not happen super altum mare.

Hitcham. Where the court has jurisdiction, prohibition lies after sentence.

Jones, J. denied this. The prohibition was refused.

Talbot, Dr. They might have helped themselves by alledging that the property was in them, before the bottomry, and this they may yet do upon an appeal.

Curia to Hitcham. Take your remedy against your factor, or him who pawned the vessel, in an action of trover.

Hitcham. We cannot; for he who pawned the vessel did not deliver her.

Jones, J. Then, bring trover against Justus Lyrus. Noy 95.