¶1delivered the opinion of the court. The testimony and documents, which come up with the record, establish the quantum of the plaintiff’s claim. Indeed, that does not appear to be disputed, and the contest is only as to the right of hypothecation.
¶2With regard to the defendant, M‘Masters, the district court certainly erred in withholding from the plaintiff a judgment for that sum; and its judgment is, therefore, annulled, avoided and reversed.
¶3Proceeding to inquire what judgment ought to have been given in the district court, as to the claim of hypothecation, we cannot admit the position of the defendants’ counsel, that the deed of hypothecation is void on account of the absence of a clause, providing that the debt shall not be demanded, but held to be extinguished in case of the loss of the ship: but we think with him and the district court that the hypothecation claim does not extend to the expenses of the outward voyage, When, by the collection of the freight$ the sum loaned was paid iu whole *268op in part, the hypothecation was in like manner destroyed, and could not be revived by subsequent disbursements.
¶4It is, therefore, ordered, adjudged and decreed, that the plaintiff do recover from the defendant, M‘Masters, the sum of five thousand eight hundred and sixty five dollars, and sixty one cents ; and that the ship Ajax be sold to satisfy the sum of five hundred and thirty seven dollars, and thirty eight cents, the balance of üíe sum borrowed, and the expenses of the outward voyage, as part of the aforesaid sum, with costs of suit in this and the district court.