In the course of the trial no regard was paid to the authority of the deputy naval officer, whose situation certainly gives him no manner of jurisdiction on such a

subject. In commenting upon the evidence, the [ 8 ] Chief Justice adverted particularly to the circumstance of one of the surveyors having bid at the sale, and another become a purchaser before the ship left the island; and observed, that it might be a useful lesson to teach such persons, that by accepting the office of surveyor, they elected not to become purchasers, or to derive any benefit from a sale.

And at a subsequent trial of an action (i), brought to recover the value of a ship, which had been in like man

(i) Andrews v. Glover. Sitt. after Trin. T. 46 Geo. 3. at Guildhall,

before Lord Ellenborough, Ch. J.

This is the disposition of my

for the benefit of the owners. mind, but I cannot lay it down as positive law. At all events it can only be justified by extreme necessity and the most pure good faith; that is, if the vessel is in such a state, as it would be probable the owners themselves, if on the spot, would have acted in the same way as the captain has done." And in a subsequent case where a ship had put into a port in distress, and was there, on the application of the master, surveyed and adjudged unseaworthy, and sold by decree of a vice-admiralty court, although it was agreed that the sale was bona fide and made for the actual as well as intended benefit of all concerned, yet the court pronounced the sale invalid. Reid v. Darby. 10 Fast. Rep. 143. And the court were further of opinion in the same case, that a transfer of a ship in such case as between British subjects, supposing it good in other respects, must be made according to the requisites of Registry Acts. Perhaps if the ship did not specifically subsist, but was a mere scattered wreck it would be otherwise. Id. ibid.

ner condemned and sold at Tobago, as incapable of repair, and in which also the plaintiff succeeded, his Lordship said, that he considered a proceeding of this sort, not as the sentence of a Court pronounced for the captors of a captured vessel, but rather as the inquisition of a Sheriff, for the purpose of information to those, who under certain circumstances have the power of selling the ship. Such an inquisition is not conclusive upon the party whose property is in question.

4. The (k) writers on maritime law inform us, that if a ship be sold with the tackle, apparel, furniture, and other instruments thereto belonging, the ship's boat is not conveyed by these words, and they found their opinion upon the authority of those parts [9] of the Digest, in which it is said that the boat is not a part of the ship (/), or of its apparel (m).

5. It has been observed, that the property of a ship is now always evidenced by written documents. And these documents not only furnish the owner with proof of his property, but also enable him to dispose of it, when the ship is at sea, or in a foreign port. When a ship is here in the country of its owner, and a delivery of actual possession is possible, such delivery is necessary to give a perfect title to the buyer, in case of a sale of the whole ship; for although as between buyer and seller the sale may be completed by payment of the price without delivery of possession, yet if the buyer suffer the seller to remain in possession, and act as owner, and the seller in the mean time become bankrupt,

1

(k) Roccus, not. 20. Straccha de Navibus, pars. 2. num. 12. Molloy de Jure, m. & n. book 2. ch. 1. sect. 8. The latter adds, that if a ship commit piracy, the boat is not forfeited; and refers to a case in Roll's

F

Ab. for his authority: and Beawes
has followed the words of Molloy.
But in the case referred to, the
boat is not mentioned.

(1) Dig. 21. 2. 44.
(n) Dig. 6. 3. 1.

the property will be considered as remaining in him to be disposed of for the benefit of his creditors (n); and sometimes also, if an execution issue upon a judgment against the seller, the sale may be deemed fraudulent and void as against the party who has obtained the judgment (). But in case of a sale, or agreement for sale, of a part only, it has been thought sufficient, if the vendor, having delivered the muniments of his title, ceased

from the time to act as a part-owner, actual de[10] livery of a part being said to be impossible (p). This, however, should be understood with some limitation for if a part-owner has the actual possession of the ship, it is not impossible for him to deliver the possession if he has not the actual possession, the possession, of the other part-owners may reasonably be considered to be the possession of the vendee after the sale. Indeed, in the case of an absolute sale, it can rarely happen in practice that the seller should continue in possession: but the rule extends also to mortgages of this species of property, and with regard to them has been often actually enforced (q). But when a ship is abroad, a perfect transfer of the property may at the Common Law be made by assignment of the Grand Bill of Sale, and delivery of that and the other documents relating to the ship (r), as the delivery of the key of a warehouse to the buyer of goods contained

(n) By virtue of the Stat. 21. James 1. c. 19.

(0) By the Common Law, and the Statute 13. Eliz. c. 5.

(p) Addis v. Baker and others, 1 Anst. 222. See also Gillespie v. Coutts, Ambler, 652.

(4) Stephen v. Sole, cited in 1 Ves. 352. and in 1 Atkins, 157. Hall . Gurney, Co. Bank. Laws, ch. 8.

s. 11. Falkner v. Case, 1 Bro. Ch. Ca. 125, and more at length, 2 Ter. Rep. in B. R. 491.

(r) Ex parte Matthews, 2 Ves. 272. and Atkinson v. Maling, 2 Ter. Rep. in K. B. 462. Ex parte Batson, Co. Bank. Laws, ch. 8. s. 11. 3 Bro. Ch. Ca. 362, and per Kenyon Ch. J. arguendo in Gordon v. E. I. Company, 7 Ter. Rep. in K. B. 234.

therein is held to change the property of the goods, according to the rule of the Civil Law (s); such delivery in each case being not merely a symbol, but the mode of enabling the buyer to take actual possession, as soon as circumstances will permit. And the legislature

has recognized this mode of transfer, and intro- [11] duced particular regulations respecting it, as will be noticed in the following chapter. And to this purpose, in the case of Batson before referred to,* Dublin was esteemed a foreign port with respect to a ship belonging to owners resident in England, and mortgaged there.

In such a case, however, the buyer or mortgagee should not delay to take possession of the ship upon its return to this country.

6. The law of England, which in all its branches favours the transmutation of property made without fraud, as considering such transmutation beneficial to commerce, differs in this particular very materially from the law of France; for, by the (t) French ordinance, all ships remain subject to the debts of the seller, until they have made one voyage at sea, under the name and at the risk of the new purchaser, unless they have been sold under a decree; and the sale of a ship at sea shall never prejudice the creditors of the seller. And Valin, in his commentary on this part of the ordinance, says, that the debts here meant are debts of every description due at the time of the sale and in another place (u) he informs us, that according to the general law of France, ships like other moveables cannot be hypothecated; and that in those parts of France where the hypothecation

(s) Dig. 41. 1. 9. 6.

(u) Comment: on the French (t) Liv. 2. Tit. 10. Des Navires, Ordinance, tom. 1. p. 340. art. 2. & 3.

* Ante. 10. note (r).

of moveables is permitted, the hypothecation con [12] tinues in force only during the possession of the debtor himself, and does not enable the creditor to follow the property into the hands of a third person. It should be observed, that in the case of hypothecation, according to the strict meaning of that word in the Civil Law (x), the debtor always continues in possession of the thing hypothecated.

7. Another mode of acquiring property in a ship is by capture from an enemy in time of war, legalized and sanctioned by a sentence of condemnation in a Court of the capturing power, constituted according to the law of nations. In this case, however, if the capture is made by a ship belonging to his Majesty, the prize is formally condemned to the King, and the value distributed among the captors; and if the capture is made by a private ship, in which case the sentence is in form a condemnation to the captors, a sale will always be the most convenient mode of ascertaining the value, both for the purpose of distribution among the captors, and of payment of the (y) duties to the King; and the Acts of Parliament which give to prizes the privileges of British ships, presume a sale thereof, and provide regulations accordingly, as will appear in the next chapter.

[13]

8. Capture by pirates, who are merely robbers at sea (z), does not divest the property of the owner; and in a very early period of our history a law was made for the restitution of property so taken, if found

(x) Dig. 13. 7. 9. 2. Proprie pignus dicimus, quod ad creditorem transit; hypothecam, cum non transit, nec possessio ad credito

rem.

(y) By 34 Geo. 3. c. 70. ships of

war, whether public or private, captured and made prize, are exempt from duty.

(z) 27. Edw. 3. stat. 2. c. 13. Year Book, 2. Rich. 3. 2. Jenkin's Cent. p. 165.