petent authority upon the subject-matter, and over the parties concerned; a court which has the means of pursuing the proper inquiry, and enforcing its decision by reason of its possession of the res ipsa, the corpus, which is the subject-matter of it. According to this principle, a ship carried into a neutral port ought not, while remaining there, to be condemned in the country of the captors; and in the cases of the Flad-Oyen and the Herstelder (u), Lord Stowell was of opinion that such a practice was not authorized by the law of nations. In the last cited case, having learnt that a Dutch ship, condemned by him, and which was described as lying at Plymouth, had been taken on capture to a port in Norway, and lay there at the time of adjudication, he declared that "the court would not condemn a vessel lying in a neutral port, and directed the registrar to amend the decree. "Upon principle," said the same learned judge, in the subsequent case of the Heinrich and Maria (v), which was that of a British ship carried into Norway by a Dutch privateer, and condemned by a court at the Hague, "it is not to be asserted that a ship brought into a neutral port is with effect proceeded against in the belligerent country. The res ipsa, the corpus, is not within the possession of the courts, and possession in such cases founds the jurisdiction." But having been satisfied that the High Court of Admiralty of England had condemned, as prize ships, lying at Leghorn and Lisbon, when the sovereigns of those ports were not engaged in a common war against the enemy of this country, and had also issued commissions to other neutral ports for the examination of prisoners of war carried into them, he added, "I am of opinion that this court is bound against the true principle, by the practice which it has not only admitted but applied. The observation of Bynkershoek, ' In jure belli quod quis sibi sumit hostibus tribuendum est'-a rule true in all instances-is not more true in any instance than in one in which the rights and interests of other countries, being neutral, are so directly concerned. How far the superior court may consider that question as concluded by the practice, even an inveterate practice of this court, is more than I can say ; it may deem it to be its duty to recall the practice of this court to the proper purity of the principle; but sitting here and observing, as I am judicially bound to do, the course of judicial administration which has prevailed, I do not feel myself authorized to uphold the sentences which have passed in this court over prizes carried into foreign ports, and disallow, at the same time, the validity of such as the enemy has pronounced, under circumstances so nearly similar as not to afford ground of a distinction between them, which appears to my judgment sufficiently solid." To this decision Lord Stowell adhered in the cases of the Comet (x) and the Victoria (y), a British ship condemned as prize of war by a French tribunal while lying in a port of Spain, then in alliance with France, afterwards sold upon a rupture between them by order of the Spanish government, purchased by a (u) 1 Rob. A. R. 113. (v) 4 Rob. A. R. 34. (x) 5 Rob. A. R. 285. Spaniard, brought by him to England, and arrested by Admiralty process at the suit of the original British owner. There is, however, a material difference between this last case and the two preceding ones, for as to 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; 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 (z). The case of the Heinrich and Maria was affirmed by the lords of appeal; and the judgment pronounced by Sir William Grant (a) proceeds upon the ground, that the practice of Great Britain must have the effect of making those sentences valid, and that there was no equity on which we could deny the validity of that title to neutrals purchasing of the enemy, at the same time that they were invited to take it from ourselves (b). The doctrine thus sanctioned by the practice of France, Spain, and 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 (c). The Admiralty Court of Prizes 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 (d). If a neutral state seize and sell a vessel, there being no sentence of condemnation, the property in the vessel is not changed (e). Capture by pirates, who are merely robbers at sea (f), does not (z) The Christopher, 2 Rob. 209. The Betsey, 2 Rob. 210. Oddy v. Bovill, 2 East, 472. (a) 6 Rob. A. R. 138. (b) "A like decision was in the intermediate time made by Lord Stowell in the Comet, 5 Rob. 285, and again in the Victoria, Edwards, 97." The doctrine of the British courts proceeds, as is at once seen, not so much upon its supposed correctness in point of principle, as upon the general usage of nations, and particularly of Great Britain. The question has been argued upon principle in the Supreme Court of the United States; and after elaborate discussion, it has been finally adjudged that a condemnation of prize property, while lying in a neutral port or in the port of an ally, is valid, and 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. (c)" 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 new expected to conform." The Heinrich and Maria, supra. (d) Per Buller, J., in Smart v. Wolfe, 3 T. R. 323; and see post, general average, s. 12; and Hughes v. Cornelius, 2 Show. 232. Tompson v. Smith, Sid.320. Le Caux v. Eden, 2 Dougl. 594. Mitchell v. Rodney, 2 Br. P. C. 423. Lindo v. Rodney, 2 Dougl 613. (e) Wilson v. Forster, 6 Taunt. 25, and Marsh. on Ins. by Shee, 5th ed. 447; 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. See also Castrique v. Imrie, 29 L. J. (N. S.), C. P. 321, and 30 L. J. (N. S.) C. P. 177; and 8 C. B. (N. S.) 1 and 405; also Cammell v. Sewell, 29 L. J. Ex. 350; 3 H. & N. 617; and 5 H. & N. 728, as to foreign judgments in rem and in personam, and the binding effect of the former. See also the Bold Buccleugh, 3 W. Rob. 220. (f) 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 government of their country committing piratical acts, The Magellan Pirates, 1 E. & A. p. 83. 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 acquired the character of established governments, and having regular treaties with this country, were not 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). The subject of restitution on recapture will be mentioned in the chapter on salvage. 4. Of the Evidence of Property in Ships absolute, and by way of Mortgage. 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 (); but if the (h) Hale's Treatise, part 2, ch. 28; in Hargrave's Law Tracts, p. 246. Goss v. Withers, 2 Burr. 683; Rob. A. R. 59; Marsh. on Insurance, 5th ed., by Shee, p. 394. (i) The Helena, 4 Rob. A. R. 3. (j) Stevens v. Bagwell, 15 Ves. 139. 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 and subsequent statutes; see 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 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 (0), 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 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 (s) he informs us that, according to the 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, Anibl. 652. Ex (0) Brown v. Heathcote, 1 Atk. 160. Ex parte Matthews, 2 Ves. 272, and Atkinson v. Maling, 2 Term Rep. in K. B. 462. 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. (7) Co. Bank. Laws, ch. 8, s. 11. (r) Liv. 2, tit. 10; Des Navires, arts. 2 and 3. (8) Com. on the French Ordinance, tom. 1, p 340. 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. Of the Liability of Owners of Ships for Repairs or Necessaries. 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 were 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 (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 (t) Dig. 13, 7, 9, 2. Propriè pignus dicimus, quod ad creditorem transit; hypothecam, cum non transit, nee 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. (v) McIver v. Humble, 16 East, 169. (x) Young v. Brunder, 8 East, 10. Baker v. Buckle, 7 Moore, 349. |