for such a case, however, the buyer should not delay to take possession of the ship upon its return to this country. (1)

(1) The principles stated in this section are recognized as sound law in America. Thus in the case of the President, &c. of the Portland Bank v. Stacy (4 Mass. R. 661), it was held that a bona fide sale of a ship and cargo at sea is valid against all the world, provided the vendee use reasonable diligence on the return thereof to take possession. And again in Lamb v. Durant (12 Mass. R. 54), the Court decided that the sale of a ship at sea is not complete and perfect as against third persons, who have no knowledge of the sale, until there has been an actual delivery of the ship to the purchaser; and therefore if there be a second bona fide sale of a ship at sea to an innocent purchaser, who first obtains possession, he shall hold it as having the better title. But the same principle does not apply as to creditors, for if upon a bona fide sale for a valuable consideration of a ship and cargo at sea, the purchaser take possession within a reasonable time after the return of the ship, his title is good and valid against attaching creditors. The Portland Bank v. Stubbs, (6 Mass. R. 422); Putnam v. Dutch, (8 Mass. R. 287); Tucker v. Buffington, (15 Mass. R. 477.) And the purchaser is not bound to follow the ship from port to port in order to take possession; but he may reasonably wait for her return to the port, to which she belongs, and the sale will be good against creditors attaching at any other port before such return. Badlam v. Tucker, (1 Pick. R. 389.)

Where a vessel is sold while at sea, it is sufficient for the vendee, in order to maintain his title against a subsequent purchaser or attaching creditor, to take possession of her without any unreasonable delay after her arrival; and whether possession has been taken within a reasonable time, is a question for the jury under the circumstances. Joy r. Sears, 9 Pick. 4; Brinley v. Spring, 7 Greenl. 241 ; Gardner v. Howland, 2 Pick. 602; Turner v. Coolidge, 2 Metcalf, 350; Wheeler v. Sumner, 4 Mason, 183; 3 Kent (5th ed.) 133; Conard v. Atlantic Ins. Co. 1 Peters, 449. Should a vessel so sold arrive at another port, notice of the sale, forwarded by the purchaser to the captain, would seem to be equivalent to taking possession. Brinley v. Spring, 7 Greenl. 241.

One eighth of a vessel at sea, belonging to Hyannis, was sold to a person residing in Nantucket, on August 11th; she arrived at Hyannis August 22d, and sailed from there August 29th, on a new voyage, and returned there again September 16th, and was attached as the property of the vendor September 17th. The vendee came from Nantucket by the first packet after receiving news of her arrival, and arrived at Hyannis September 23d, and on that day replevied the vessel. It did not appear, that the vendee knew of the vessel's being at Hyannis in August, while she was there, and it was held, that the vendee's title should prevail against the attachment. Joy v. Sears, 9 Pick. 4.

The circumstances of the case of Turner v. Coolidge, 2 Metcalf, 350, very much resemble those of Joy v. Sears, above cited, and the same decision followed. In Turner t. Coolidge, the sale was of only a part of the vessel. The other part-owner was requested to take charge of her by the purchaser. She arrived at her home port after the sale, and sailed on another voyage under the direction of the other part-owner. It did not appear that the purchaser ever knew that the vessel had arrived at her home port, it being a different port from the one where the purchaser resided.

The Court in their decision observe; "We are inclined to the opinion, that the possession of one part-owner, who acts for himself, and, at the request of the other partowner, acts for him, supersedes the necessity of a formal taking of possession, and vests the property in the vendee."

In Brinley v. Spring, 7 Greenl. 254, the Court remark, that "the precise period em

The law of England, which in all its branches favors 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 (t), 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 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 (x), the debtor always continues in possession of the thing hypothecated.

5. It seems proper in this place to take notice of a question,

(t) Liv. 2, tit. 10; Des Navires, art. (x) Dig. 13, 7, 9, 2. Proprie pignus 2 & 3. dicimus, quod ad creditorem transit; hy(u) Com. on the French Ordinance, pothecam, cum non transit, nec possessio tom. 1, p. 340. ad creditorem.

braced under the term reasonable time, and when that degree of negligence is imputable, by which a transfer of this kind is vacated, has not been distinctly settled to an hour or a day." In Gardner v. Howland, 2 Pick. 602, C. J. Parker states, that the transfer of a ship at sea remains valid, unless there has been such negligence in taking possession when the ship arrives, as will afford ground for the presumption of fraud. > And if a ship at sea be mortgaged, the mortgagee must take possession in the same way and within a reasonable time after her return, otherwise his title will not be complete against creditors. What constitutes such reasonable time is matter dependent upon the circumstances of each case. And if by the terms of the mortgage, the mortgagor is to retain possession until after default, the omission on the part of the mortgagee to take possession, until after that period has arrived, does not invalidate the conveyance; for it comes within the rule that the possession accompanies and follows the deed. Badlam . Tucker, (1 Pick. R. 339.) And it is not any objection to such a mortgage, that it is for future as well as past advances. The transmutation of the property is completed by the delivery of the Bill of Sale, and the property thereupon vests in the purchaser, although it may be divested by his neglect to take possession in due time.-(Ibid.) See also Bartlett r. Williams, (1 Pick. R. 288.)

The same principle applies to the sale of any other goods at sea as to the sale of a vessel. Pratt v. Parkman, 24 Pick. 46, 47; Gallop v. Newman, 7 Pick. 203; Gardner v. Howland, 2 Pick, 602; D'Wolf v. Harris, 4 Mason, 515. >

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 pay

ing for repairs or tnecessaries ordered by other per- [32] sons. A notion at one time prevailed, and it was countenanced by high authority (i), 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. (1)

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 answerable (k). 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 (1). (2) "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 *and Griffiths (m), it was sought to charge the defendant

(i) See Westerdell v. Dale, 7 T. R. 306, and the judgment of Lord Mansfield, in the case of Reid v. Coe, 1 Cowp. 636. (k) McIver v. Humble, 16 East, 169.

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

(m) 1 Ryan & Moody, 42. See also Harrington v. Fry, 1 C. & P. 289.

(1) See Dame v. Hadlock, 4 Pick. 458, 459, note (1) to (2d ed.), and cases cited. The register at the custom house is not the sole or conclusive evidence of ownership. Lord v. Ferguson, 9 N. Hamp. 380. >

(2) < See Lord v. Ferguson, 9 N. Hamp. 380. >

* 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. [33] +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 ownershipthe 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 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 (n), 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. (1)

(n) 11 East, 435.

(1) Where a contract was entered into for the sale of a vessel, the possession of which was immediately taken by the purchaser, but it was agreed, that a bill of sale should not be given until the whole purchase money was paid, and in the mean time the register stood in the name of the original owner, who, however, exercised no control in any respect over the vessel, it was held, that he was not liable for repairs made by direction of the master, and on the credit of the purchaser, between the time of the contract and the consummation of it by delivery of a bill of sale. Leonard v. Huntington, (15 John. R. 298.) The ground of the decision was, that the repairs

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 (0), 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 [34] 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

(0) 13 East, 238.

were on the credit of the purchaser. And a like decision had been made in the prior case of Wendover v. Hogeboom, (7 John. R. 308.) The cases have been recognized and confirmed in the recent decision of Thorn v. Hicks, (7 Cowen, R. 697.) So in the case of Cutler v. Thurlo, 20 Maine, 213. > This doctrine is in conformity with the principles decided in the English Courts in Frazer v. Marsh, 2 Camp. R. 517, and 13 East, 238.

The case of Harrington v. Fry (2 Bing. R. 179) contains a clear exposition of the true doctrine. That was an action brought for supplies for a ship against a party, who took a share in the ship under a conveyance void for want of conformity to the registry acts; and the Court held him not liable, unless credit were given to him individually, or he held himself out as owner. Mr. Chief Justice Best there said; "A man can only be charged in respect to property in a ship, either upon credit given to him, or as legal owner, or as holding himself out as legal owner." See also McIver v Humble, 16 East, R. 169; Cox v. Reid, 1 Payne & Carr. R. 602; Dame v. Hadlock, 4 Pick. R. 458.

So, where necessary supplies were furnished to a vessel abroad on a voyage, after the owners of her, when she sailed, had bona fide sold all their interests in her, but of which sale neither the master, nor the merchant furnishing the supplies, had any knowledge, it was holden, that they were not liable for such supplies; and the Court said, when such supplies are furnished, the merchant may furnish them on the credit of the ship by taking an hypothecation, or on the credit of the master by his consent, or on the credit of all, who are owners at the time the supplies are furnished, because they have the use and benefit of them. But the original owners are exempted from all obligation to pay for supplies furnished after the sale, because they are no longer owners, nor interested in the vessel or the voyage. Hussey v. Allen, (6 Mass. R. 163.) See also the Portland Bank v. Stubbs, (6 Mass. R. 422); James v. Bixby, (11 Mass. R. 34.) This case supposes, that no special credit was given or authorized to be given by the original owners; for such a circumstance might vary their responsibility, notwithstanding a sale. See James v. Bixby, (11 Mass. R. 34.)

The case of Mulden v. Whitcock, (1 Cowen. R. 290) proceeds on the same principles, and is a strong application of them.