*Holland, and reluctantly admitted by the High Court of Admiralty of England, has, after much diversity of opinion, been adopted by the Courts of the United States (b).

As to the states in alliance with the captors, and at war with the country to which a captured ship belongs, they are considered as forming one community with the captors (e); and a prize carried into such a state may be legally condemned, either there by a consul belonging to the nation of the captors, or in the country of the captors (d).

The Admiralty Court of Prizes alone has jurisdiction not only over the question of prize, but over all its consequences; it may restore the ship and condemn the cargo, and give or refuse freight to the master of the ship captured according to the nature of the cargo and the circumstances of the case (e).

If a neutral state seize and sell a vessel, there being no sentence of condemnation, the property in the vessel is not changed (ƒ).

Capture by pirates, who are merely robbers at sea (g), does not devest 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 within the realm, belonging as well to strangers as Englishmen. But capture by an enemy, in the exercise of war between two nations, does, according to the law of nations, wholly devest the property of the owner, and transfer it to the captor or the sovereign of his state at some period (h). The African states, having now acquired the character of established governments, and having regular treaties with this country, are not at present considered as pirates; and, therefore, in the case of a British ship captured by the Algerines, and sold under the authority of the Dey of Algiers, before the Spanish Consul, to a merchant of Minorca, who transferred it to a British merchant under the sanction of the Judge of the Vice-Admiralty Court at Minorca, the Court of Admiralty here refused to award restitution to the original owner (i). When by condemnation a complete title has vested in the captors, the property in the prize relates back to the time of the capture, and an assignment by the captors in the meantime is valid (j).

may be rightfully proceeded in by the Courts of the captors. Hudson v. Guestier, 4 Cranch. Rep. 293; S. C. 6 Cranch. 281. The Arabella and Madeira, 2 Gall. Rep. 368; Story, note to American edition, p. 16.

(b) "Placuit gentibus,” said Lord Stowell, "is an expression of Grotius, in my opinion perfectly correct, as intimating that there is a use and practice of nations to which we are now expected to conform."

(c) The Betsy Kruger, 2 Rob. A. R. 210. Oddy r. Bovil, 2 East, 473.

(d) The Christopher Slyboom, 2 Rob.

A. R. 209.

(e) Per Buller, J., in Smart v. Wolfe, 3 T. R. 323; and see post, p. 384; and Hughes r. Cornelius, 2 Show. 232. Tompson v. Smith, Sid. 320. Le Caux r. Eden, 2 Dougl.

594. Mitchell v. Rodney, 2 Br. P. C. 423. Lindo v. Rodney, 2 Dougl. 613.

(f) Wilson v. Forster, 6 Taunt. 25, and 1 Marsh. 425; and see, as to the effect of a condemnation by a foreign Court of a British ship on the title of the vendee, Wordsworth v. Larkin, 1 Esp. 288.

(g) 27 Ed. 3, s. 2, c. 13; Year-Book, 2 Rich. 3; 2 Jenk. Cent. p. 165; and see as to rebels and insurgents against the govern ment of their country committing piratical acts, The Magellan Pirates, 1 E. &. A. p. 83.

(h) Hale's Treatise, in three parts, part 2, ch. 28; in Hargrave's Law Tracts, p. 246. Goss v. Withers, 2 Burr. 683; 1 Rob. A. R. 59; Marsh. on Insurance, p. 427. (The Helena, Hislop, 4 Rob. A. R. 3. (j) Stevens v. Bagwell, 15 Ves. 139.

The subject of Restitution on recapture will be mentioned in the chapter on Salvage.

4. 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 an execution issue upon a judgment against the seller, the sale may be deemed fraudulent and void as against the party who obtained the judgment (k). If, again, the buyer suffer the seller to remain in possession and act as owner, and the seller become bankrupt before the buyer takes possession, the property may be considered, under the Bankrupt Act, as remaining in him, to be disposed of for the benefit of his creditors (1); but if the buyer, having suffered the seller to remain in possession, does after a time take possession of her, and the seller then becomes bankrupt, this will not come within the statute, possession having been taken before the bankruptcy (m).

In the case of a sale or agreement for sale of a part only, it is thought sufficient, if the vendor, having delivered the muniments of his title, ceased from the time to act as a part-owner, actual delivery of a part being said to be impossible (n). This, however, should be understood with some limitation; for if a part-owner has 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. 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 (o), as the delivery of the key of a warehouse to the buyer of goods contained therein is held to change the property of the goods, according to the rule of the Civil Law (p); such delivery

Morrough v. Comyns, 1 Wils. 211. Alexander v. Duke of Wellington, 2 Russell & M. 35.

(k) By the common law and the stat. 13 Eliz. c. 5. Robinson v. McDonnell, 2 B. & A. 134; and see Boyson v. Gibson, 4 C. B. 121.

(1) By virtue of the stat. 6 Geo. 4, c. 16, s. 70, and former statutes in Monkhouse and Others v. Hay and Others, 2 Brod, and Bing. 114. Hay v. Fairburn, 2 B. & A. 193. Mair v. Glennie, 4 M. & S. 240. Robinson v. McDonnell, 5 M. & S. 228. Ex parte Burns, 1 Jac. & W. 378. Kirkley v. Hodgson, 1 B. & C. 588. Philpot v. Williams, 2 Eden, 231. With respect to an unfinished ship appropriated by payment of instalments by the purchaser, while still unfinished, but continuing in the hands of the builder at the time

of his bankruptcy, see Clarke v. Spence, 4 Ad. & El. 448, where a ship so circumstanced was held not to be within the order and disposition of the bankrupt with the consent of the owner, and therefore not to pass to his assignees.

(m) Robinson v. McDonnell, 2 B & A. 134; and see post, as to Mortgages of Ships. (n) Addis v. Baker and Others, 1 Anst. 222. See also Gillespie v. Coutts, Ambl. 652.

(0) Brown v. Heathcote, 1 Atk. 160. Ex parte Matthews, 2 Ves. 272, and Atkinson v. Maling, 2 Term 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. East India Company, 7 Term Rep. in K. B. 234.

(p) Dig. 41, 1, 9, 6.

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 recognised this mode of transfer, and introduced particular regulations respecting it, as will be noticed in the following chapter. And to this purpose, in the case ex parte Batson (q); 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 should not delay to take possession of the ship upon its return to this country.

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 French ordinance (r), 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 (8) he informs us that, according to the general law of France, ships, like other movables, cannot be hypothecated; and that in those parts of France where the hypothecation of movables is permitted, the hypothecation continues 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 (t), the debtor always continues in possession of the thing hypothecated.

5. It seems proper in this place to take notice of a question on which formerly much misconception existed-How far, and under what circumstances, the legal title and ownership of a ship attach to themselves the responsibility of paying for repairs or necessaries ordered by other persons? A notion at one time prevailed, and it was countenanced by high authority (u), that the registered owners were in all cases liable for repairs done, or necessaries supplied to a ship, and actions were continually brought against persons whose title appeared complete upon the register, when, in fact, the credit had been given to others.

The title to a ship may furnish evidence that repairs are done, or stores supplied, under the authority and upon the credit of the legal owner, as, in fact, they generally are; but it does no more, and, therefore, if it appear that they were made or supplied under the authority, and upon the credit of another, the legal owner will not be answer

(q) Ex parte Batson, Co. Bank. Laws, ch. 8, s. 11.

(r) Liv. 2, tit. 10; Des Navires, art. 2 & 3.

(*) Com. on the French Ordinance, tom. 1, p. 340.

(t) Dig. 13,7,9, 2. Proprie pignus dici.

mus, quod ad creditorem transit; hypothe cam, cum non transit, nec possessio ad creditorem.

. (u) See Westerdell v. Dale, 7 T. R. 306, and the judgment of Lord Mansfield, in the case of Reid v. Coe, 1 Cowp. 636; and see Holcroft v. Hoggins, 2 C. B. 488.

able (v). Thus, where the purchaser of a ship, in the interval elapsing between the inception and completion of his conveyance, ordered the master to take her to a shipwright to be repaired, which was done accordingly, the seller, although deemed to be the legal owner at the time, was held not to be answerable to the shipwright (x). *The case," said Lord Ellenborough, "is too clear to require argument. It is true that the requisites of the Act have not been complied with; and it is true that the owners of a ship are liable for repairs ordered for them, or for their benefit, by their master; but it was never heard of, that if a stranger ordered repairs for another's ship or carriage, the owner was liable for such repairs. Suppose a pirate ran away with a ship, would the owner be liable for repairs ordered by him? Now here the captain by the order of the purchaser, who was a mere stranger to these defendants in point of law, directed the plaintiff to make the repairs: how, then, can the defendants, merely because they remained as owners upon the register, be liable for repairs ordered by the captain, under the authority of a stranger to the defendants? It would be contrary to the credit actually given, to hold the defendants liable." In the more recent case of Jennings v. Griffiths (y), it was sought to charge the defendant for repairs done to a ship, on the ground that he was the registered owner. The evidence of the registry was rebutted on the part of the defendant, by proof of the transfer of his interest by bill of sale, which had not been registered. Lord Tenterden said, "The object of the Legislature in passing the Registry Acts was clearly one of general policy, namely, to prevent foreigners from participating in the advantages which it was intended to give to British shipping only; and the use of the registry is to enable the government officers to ascertain, at all times, that the real owners are British subjects. Soon after the passing of these Acts, the leaning of courts of law in their construction was to say that the registered owners of ships should, at all events, be liable for repairs. But the subject having become more accurately understood, a better and more correct principle now prevails, and the recent cases have decided that the true question in matters of this description is, Upon whose credit was the work done?' That question would, in most cases, be decided by the fact of legal ownership-the repairs being generally done for the legal owners. But it may so happen that the name of a person may be retained on the registry after he has ceased to be beneficially interested in the ship, or to interfere with its concerns. In the case before you, it does not appear that the defendant had the slightest knowledge of the work being done, nor that the plaintiff had any reason to suppose him connected with the vessel. The repairs were

**

(v) Melver v. Humble, 16 East, 169.

(x) Young v. Brander, 8 East, 10. Baker v. Buckle, 7 Moore, 349.

(y) 1 Ryan and Moody, 42. See also Harrington v. Fry, 1 C. & P. 289; and Curling v. Robertson, 8 Scott's N. R. 17; and the observations on the case of Jennings v. Griffiths, by Lord Campbell, in Frost v. Oliver, 22 L. I. 353. Q. B., where it was held (diss. Erle, J.), that there was evidence to fix the registered owner with liability for necessa

ries supplied to a ship by a master not appointed by him, but by a person to whom he had sold the ship by a contract after. wards cancelled by him, and void under the Registry Act for not reciting the certificate of registry. In the subsequent case of Mitchenson v. Oliver, in which a bill of exceptions was tendered, the judgment of the Court of Exchequer Chamber agreed with that of the dissenting Judge.

* ordered by the direction of a captain appointed by a stranger to the defendant, and that too whilst he was residing in a distant part of the country. The question for you to consider is, Were or were not these repairs done upon the credit of the defendant?" So in the case of Trewhella v. Rowe (2), where a ship was sold in the interval between an order for stores given by the seller and the delivery of them on board, the purchaser was held not to be responsible for them, although he was responsible for such articles ordered by the master after his purchase.

6. Upon the same principle have been determined the cases in which the question has arisen, whether the charterers or hirers of a vessel for a specified time, or adventure, or the absolute owners, are liable for repairs done, or stores supplied to her. Here again the question has been, On whose credit was the work done, or the goods supplied? by whose servant was the order for them given? In Frazer v. Marsh (a), the defendant, being the registered owner of a ship, let her by charter-party for a given number of voyages, at a certain rent, to Walker, who was then the captain of her, and who afterwards ordered stores for her use, which were supplied by the plaintiff, for the value of which the action was brought. Lord Ellenborough said, "The question is, whether the captain, in this instance, who ordered the stores, were or were not the servant of the defendant, who is sued as owner? and as they do not stand in the relation of owner and master to each other, the captain was not the defendant's servant, and, therefore, the latter is not liable for his act."

In the case of Reeve v. Davis and Others (b), which was assumpsit for goods sold, work, &c., the defendants were the registered owners of a steam-vessel, for which goods were supplied and work done, chiefly upon orders given by one Thompson, who was the captain; some also were given by the ship's husband and the engineers. The vessel was let to Thompson by a charter-party, under seal, executed by himself and the defendant Davis, acting for himself and the other owners. By this charty-party, the defendant hired and let to freight, and Thompson engaged and took to freight, the vessel for twelve months, to be employed in carrying passengers and goods between London and Topsham, in Devonshire. The defendants engaged to keep the engine in repair, Thompson himself to do all other repairs; to pay all wages of persons employed on board during the term, all charges attending the working and sailing of the vessel, piloting and port-charges; to indemnify the owners against all debts, costs, damages, expenses, &c., incurred by the vessel, or any person employed on board, or by Thompson, for and in respect of the said charter-party, and employment of the said vessel; to pay the hire of the vessel monthly; to insure in the name of the owners; to keep all the vessel in repair, except the engine, and to deliver her up in good repair at the end of the term. The owners were to appoint the engineers, but they were to be paid by Thompson.

*The plaintiff was unacquainted with the above contract; and it was

(z) 11 East, 435.

(a) 13 East, 238.

(b) 1 Adol. & Ellis, 312.