life, we have no hesitation to express our total disbelief in this imaginary notion. We do not agree with Abernethy that the only person who ever died of a broken heart was a ticket porter; the wounds of the spirit, though they have no nomenclature in physic, slay many; but the death of a lawyer at sixtynine is surely not so premature as to be ascribed, with any show of reason, to an affliction, however severe, which occurred several years before.

By his marriage with Lady Gibbs, who survived him, and for whom he had great affection-there are few characters more thoroughly domestic than your hard-working lawyers—he left one daughter, married to Mr. Pilkinton, and two nephews. His personalty was sworn to be under 80,000l. Of this sum he bequeathed 30,000l. to his daughter on the death of Lady Gibbs, leaving to her nearly the whole of his remaining personalty and real estate. In person Sir Vicary was below the middle stature, not more than five feet three or four inches in height, of a meagre and attenuated frame. As Miss Seward says of Dr. Darwin, "beauty and symmetry had not been propitious to his exterior." He looked plain in his wig, and ugly out of it. It was said of him, with more truth than politeness, that his face had such strong points and angles, it might have been hewn out with a hatchet. His complexion was the colour of the parchment he had studied. A keen eye, hooked nose, thin lips, and pinched nostrils, lent an expression of peculiar acrimony to his countenance. The "naso suspendis adunco" of Horace represented exactly the character of that prominent feature. No one could look at him without at once perceiving that he was sarcastic and austere. His address did not redeem the outward appearance of the man, being at once constrained, distant, and assuming.

On his character, after the illustrative anecdotes and comments we have given, it would be superfluous to enter into further observations in detail. One caution is indeed necessary to guard the reader against a too unfavourable impression. He was a man of worth, but unamiable-a high churchman in religion, and in his politics a decided Tory. His eloquent advocacy of the acquitted felons in 1794 had made the name of Gibbs for a season, though he never appeared amongst them, a favourite with their party, and when he became an

official supporter of government, their displeasure evaporated in the harmless joke of proposing the memory of the late Mr. Gibbs. His bias to Toryism became more determined as he advanced in years, but he had no opinions to recant—no mean adoption of convenient politics to justify-no apostacy to explain. We have admitted his ill-temper, and assigned indifferent health as an excuse, the force of which will be admitted by those alone who have themselves struggled with disease. They know how futile is the ironical bidding of the poet:

"Go bid physicians preach our veins to temper,

And with an argument new set a pulse."

To the zealous patronage of Gibbs, Gifford and Dampier were chiefly indebted for promotion. His anxiety, indeed, in aiding the professional advancement of young friends exposed him, with too much reason, both in his official character of Attorney-General and in the capacity of Judge, to the imputation of favouritism. The bar of the Western Circuit had cause to complain of the spirit of partizanship with which he sought to push the fortunes of an especial favourite. It is a fault which all men in authority and leaders of circuits ought carefully to shun, both on personal and professional grounds; for it tends to exclude that fair and equal chance of success which is the best characteristic of the law as a profession, and necessarily exposes those against whom it is charged to much censorious remark. But it is a fault to which men of cold and reserved habits, who attach to themselves few intimacies, and who feel, in consequence, more than due gratitude for the show of friendship in the patronized, are peculiarly prone to commit.1 This was the head and front of Sir Vicary Gibbs' offending. A high sense of honour-the innate feelings of a gentleman-a compliance, the most rigid, with the Decalogue -the domestic virtues-all these he had, but he wanted the grace, which is to the character what the frieze is to the column. His best friends must wish that he had studied more the amenities that adorn and the charities that soften life. He was beloved in the family circle-faithful to his friends-devout, magnanimous, and just; but he failed in manner, and his un

1 In most modern instances there is another and a meaner motive. The patron remunerates himself by the labour of the patronized.-Edit.

gracious deportment cast a shadow over the worth enshrined within. His great leader Erskine was almost worshipped in his generation, for apart from his gift of eloquence, he had a ready smile, a prompt and warm shaking of the hand, a pun, a jest, a repartee for all his friends; the idol of the robingroom, the demigod of the circuit table. Such is the importance of a facile address- -a happy manner- —a courteous bearing in our intercourse with the world. In real, intrinsic goodness of heart, Sir Vicary Gibbs need not have shunned the comparison. Peace to his manes! Though he failed to conciliate the good will of his cotemporaries, we may venture to predict that his name will be held in honour by posterity, for the merits of the lawyer have survived the humours of the man. T.

ART. IV.-MERCANTILE LAW, NO. XIV.-MERCHANT SHIPPING.

(Continued.)

Ar the close of our last discourse we had arrived at the third branch of the inquiry into the incidents of contracts relating to the repair and supply of vessels, the nature, namely, of the charge thereby created, whether personal or specific, or both.

By the civil law debts so arising were among the number of those which were privileged, that is to say, in respect of which the creditor had a hold upon the subject itself, in priority to such general claims upon the owner as had no immediate reference to the particular property. A like rule consequently still obtains in most of the maritime states of Europe. But the common law of England, not recognizing any such distinction, leaves the debts contracted for the service of the ship to take their place among the ordinary obligations arising out of simple contracts-imposing a personal liability only, unless the property be retained by the creditor under a claim of lien, or be specifically pledged by the formal act of the debtor. Frequent attempts indeed have been made, by proceedings in the Court of Admiralty and elsewhere, to

See vol. xii. p. 109, note (4), in which the order of privileged debts according to the law of France is set out.

import the privilege against the ship into the law and practice of this country;1 and extreme cases might be found,2 and dicta of eminent judges, inadvertently let fall and hastily gathered up, might be cited,3 which have seemed at times to sanction such attempts: but the contrary doctrine is at the present day too well settled to render a detailed examination of the authorities either profitable or interesting. It remains therefore only to notice the two exceptions of lien and hypothecation.

First. As to the lien.-By the law of England every workman or artificer has an undoubted right to retain in his hands the subject upon which his labour and skill have been bestowed until payment or tender of the stipulated remuneration. A ship-wright therefore, having the entire possession of the vessel in his own yard or dock, may detain it till the debt for the repairs then executed is satisfied.5 But lien being a right to retain the subject upon which work has been done as a security for the payment of the price of such work, it follows from this definition,-1st, that the privilege does. not extend to tradesmen supplying a ship with stores and provisions,-2dly, that it does not attach at all where there is no power to retain, that is to say, where actual and exclusive possession has not been taken, and--3dly, that it is irrevocably lost when the possession has been once voluntarily parted with. It is equally clear that the privilege is superseded by a special agreement or custom of trade inconsistent therewith; and therefore it is that upon the River Thames, where by established usage a credit is given by the shipwrights, no lien attaches upon a vessel for repairs.7

1 See Hoare v. Clement, 2 Shower, 338; Justin v. Ballam, Salk. 34; 2 Lord Raym. 805.

2 See a case of this kind, 3 Rob. Adm. Rep. 288; but this, as has been rightly observed, was an ex parte proceeding, and the circumstances were peculiar.

3 See Rich v. Coe, Cowp. 636; Farmer v. Davis, 1 T. R. 109, both by Lord Mansfield, and a similar inaccuracy, or rather perhaps too great generality of expression, by Littledale, J. in Reeve v. Davis, 1 Ad. & E. 312.

4 It is sufficient to refer to Watkinson v. Bernardiston, 2 P. Wm. 367; Buxton v. Suee, 1 Ves. 154; Hussey v. Christie, 13 Ves. 594; 9 East, 426.

5 Ex parte Bland, 2 Rose, 91; Franklin v. Hosier, 4 B. & A. 341.

6 Ex parte Bland, supra.

7 Raitt v. Mitchell, 3 Camp. 146. It appeared on the trial of this cause that the period of credit varied according to the trade in which the vessel was employed;

Secondly, as to the hypothecation.-The right of the owner to pledge the vessel by an ordinary instrument of mortgage is but the necessary consequence of his ownership, and it seems to be equally undoubted that he may, as in former times, when capital was less abundant, he not unfrequently did, hypothecate it for the expenses of outfit by a contract peculiar to this species of property and known by the name of bottomry.1

The contract of bottomry is an engagement whereby the borrower, or debtor, binds not only his own person but the vessel and its accessories to the payment of a specified sum, being the aggregate of the original debt and a stipulated sum added by way of premium or interest, within a certain period after the arrival of the vessel, in case it should so arrive, in the port of destination; and the term is derived from the technical use of the word "bottom" as signifying the keel, and therefore figuratively the whole body of the ship. The practice of taking up money on the specific security of the vessel at a high rate of interest, proportioned to the risk of the voyage, is of very ancient origin, and forms the subject of a particular chapter in the Digest ; but as the engagement, thus generally viewed, belongs rather to the class of contracts hereafter to be examined under the head of insurance, the repayment being made to depend on

that the usual credit was fifteen months, and that for East India ships it was no less than eighteen months. It seemed indeed to be calculated according to the time at which a profitable return might be looked for by the owner.

1 Abbot on Sh. p. 117. That the owner may also hypothecate by bottomry in the course of a voyage for the necessities of the voyage has been decided in the Court of Admiralty, in the case of the Duke of Bedford, Morris, 2 Hag. Adm. Rep. 294, the learned judge (Sir Christopher Robinson) citing as authorities, Pothier, vol. iii. p. 97; Emerigon, vol. ii. p. 378; Valin, liv. iii. tit. 5, art. 8; and Bynkershoek, vol. vi. p. 515.

* De nautico fœnore, Dig. 22, 2; & Codex, 4, 83. But the Roman law says nothing of hypothecation by the master for the necessities of the voyage, which practice seems to have sprung up in later times. "This contract of bottomry," says Lord Stowell, speaking with reference to the act of the master, "is comparatively of later growth, and arose out of the necessities of an enlarged commerce," and he cites the following passage from Bynkershoek. Origo hujus

contractus ex jure romano,

sed quæ ibi legimus vix trientem absolvunt totius argumenti. Adeo tenuia etiam apud nos fuerunt ejus contractûs initia: ut non nisi mutuum significaverit quo magistro peregre agenti permissum est navem ex causa necessitatis obligare." 3 Rob. Adm. Rep. 267.