was held to be necessary, even though the ship was at *146 sea at the time, and the vendee took *the grand bill of sale and possession of the ship immediately on her arrival in port. The laws of the United States do not go to that rigorous extent; and the only consequence of a transfer, without a writing containing a recital at length of the certificate of registry, is, that the vessel cannot be registered anew, and she loses her privilege as an American vessel, and becomes subject to the disabilities incident to vessels not registered, enrolled or licensed, as the statute prescribes. But where an American registered vessel was in part sold, by parol, while at sea, to an American citizen, and again resold, by parol, to her original owner, on her return into port and before entry, that transaction was held not to deprive the vessel of her American privileges, or subject her to foreign duties, for, in that case, no new register was requisite. It would have been, except in date, a duplicate of the old one, and perfectly useless.b

If a ship be owned by American citizens, and be not documented according to the provisions of the registry acts, it is not liable to any forfeitures or disabilities which are not specially prescribed. The want of a register is not a ground of forfeiture, but the cause only of loss of American privileges.c Every vessel, wherever built, and owned by an American citizen, is entitled to a custom-house document for protection, termed a passport, under the act of June 1, 1796; for it applies to "every ship or vessel of the United States, going to any foreign country." As our registry acts do not declare void the sale or transfer, and every contract or agreement for transfer of property in any ship, without an instrument in writing, reciting at large the certificate of registry; and as they have not prescribed any precise form of endorsement on the certificate of registry, and rendered it indispensa*147 ble in every *sale, as was the case under the British

■ Rolleston v. Hibbert, 3 Term Rep. 406.

The United States v. Willings and Francis, 4 Cranch's Rep. 48.

• Hatch v. Smith, 5 Mass. Rep. 42. Philips v. Ledley, 1 Wash. Cir. Rep. 226. Willing v. United States, ibid. 125. The register is the only document which need be on board in time of peace, in compliance with a warranty of national character. Catlett v. Pacific Ins. Co. 1 Payne, 594.

statutes of 26 Geo. III. c. 60, and 34 Geo. III. c. 68, we are happily relieved from many embarrassing questions which have arisen in the English courts relative to the sale and mortgage of ships.

There have been great difficulty, and some alternation of opinion, in the English courts, in the endeavour to reconcile the strict and positive provisions of the statute with the principles of equity, and the good faith and intention of the contracting parties. It has even been a question of much discussion, whether the statutes of 26 and 34 Geo. III. had not destroyed the common law right of conveying a ship by way of mortgage, like other personal property; and whether the mortgagee had not a complete title beyond the power of redemption, after the transfer of the legal title according to the prescribed form of the endorsement on the certificate of registry. *The *148 language, in many of the cases,b was in favour of the conclusion, that there could be no equitable ownership

• The cases of Rolleston v. Hibbert, 3 Term Rep. 406. Camden v. Anderson, 5 ibid. 709. Westerdell v. Dale, 7 ibid. 306. Moss v. Charnock, 2 East's Rep. 399. Heath v. Hubbard, 4 East's Rep. 110. Moss v. Mills, 6 ibid. 144. Hayton v. Jackson, 8 ibid. 511. Hibbert v. Rolleston, 2 Bro. Rep. 571, and the opinions of Wood, B., and Heath, J., in Hubbard v. Johnstone, 3 Taunt. Rep. 177, and of Lord Eldon, in ex parte Yallop, 15 Vesey's Rep. 60, and ex parte Houghton, 17 Vesey's Rep. 251, and of Sir William Grant, in 11 Vesey's Rep. 642, may be selected as samples of the strictness with which the statutes are construed, and of the defeat of bona fide transfers of vessels, by failure to comply with the literal terms of the statutes. The cases of Rolleston v. Smith, 4 Term Rep. 161, Capadose v. Codner, 1 Bos. & Pull. 483, Ratchford v. Meadows, 3 Esp. N. P. Rep. 69, Bloxham v. Hubbard, 5 East's Rep. 407, Kerrison v. Cole, 8 East's Rep. 231, Robinson v. Macdonnell, 5 Maule & Selw. 228, Curtis v. Perry, 6 Vesey's Rep. 739, Mestaer v. Gillespie, 11 Vesey's Rep. 621. 637, may be selected on the other hand, as containing evidence of the influence of equity upon the severity of those provisions. But the British registry act of 6 Geo. IV. c. 110, sec. 31, and again, the further amended and substituted statute of 3 and 4 William IV. c. 54, mitigated the strictness of the former provision. It required the bill of sale, or other instrument of writing of the sale of a ship after registry, to contain a recital of the certificate of registry, or the principal contents thereof, to render the transfer valid; but with a proviso that no bill of sale should be deemed void by reason of any error in such recital, or by the recital of any former certificate of registry, instead of the existing certificate.

Lord Eldon scattered ambiguas voces to that effec tin Curtis v. Perry, 5 Vesey's Rep. 739. Campbell v. Stein, 6 Dow's P. C. 116. Ex parte Yallop, 15 Vesey's Rep. 60. Ex parte Houghton, 17 Vesey's Rep. 251. Dixon v. Ewart, 3 Merivale's Rep. 333.

of a ship distinct from the legal title, and that upon a transfer under the forms of the registry acts, the ship becomes the absolute property of the intended mortgagee, and that the terms and the policy of the registry acts were incompatible with the existence of any equity of redemption. But these opinions or dicta have been met by a series of adjudications, which assume the laws to be otherwise, and that the registry acts related only to transactions between vendor and vendee, and to cases of real ownership; and that an equitable interest in a ship might exist by operation of law, and by the contract of the parties, distinct from the legal estate; and that notwithstanding the positive and absolute terms of the endorsement upon the certificate of register, a mortgage of a ship is good and valid, according to the law as it existed before the registry acts, provided the requisites of the statutes be complied with. The opinion of Sir Thomas Plumer, in Thompson v. Smith, contained a very clear and masterly vindication of the validity of the mortgage of a ship consistently with the preservation of the forms of the registry acts. He effectually put to flight the alarming proposition, that since the registry acts, there could be no valid mortgage of a ship; and he insisted that the defeasance annexed to the bill of sale ought to be fully endorsed as part of the instrument on the certificate of registry, if the ship be mortgaged in port; or, if mortgaged while at sea, a copy of the whole transmitted to the custom-house; and that though the defeasance *149 should not be noticed *in any of the forms adhered to at the office of the customs, and the instrument should be registered as an absolute bill of sale, the mortgagor's right of redemption would not suffer by the omission. But as no such questions can possibly arise under the registry acts of congress, these discussions in the English courts are noticed only as a curious branch of the history of the English jurisprudence on this subject.c

■ Mair v. Glennie, 4 Maule & Selw. 240. Robinson v. Macdonnell, 5 ibid. 228. Hay v. Fairbairn, 2 Barnw. & Ald. 193. Monkhouse v. Hay, 2 Brod. & Bing. 114. A mortgage of a ship is good as between the parties to the mortgage, without a registry, under the statute of 3 and 4 William IV. c. 55. Lister v. Payne, 11 Simons, 348.

b 1 Madd. Ch. Rep. 395.

In 1823, Mr. Trollope published, at London, a distinct treatise, for the very

The registry is not a document required by the law of nations as expressive of a ship's national character. The registry acts are to be considered as forms of local or municipal institutions, for purposes of public policy. They are imperative only upon the voluntary transfer of parties, and do not apply to transfers by act or operation of law. They are said to be peculiar to England and to the United States, whose maritime and navigation system is formed upon the model of that of Great Britain. But by various French ordinances, *between 1681 and the era of the new code, it *150 was requisite that all vessels, in order to be entitled to the privileges of French vessels, should be built in France, under some necessary exceptions, and should be owned exclusively by Frenchmen, and foreigners were prohibited from navigating under the French flag; and a Frenchman forfeited his privileges as such owner, by marrying a foreign wife, or residing abroad, unless in connection with a French house. The register is not of itself evidence of property, unless it be confirmed by some auxiliary circumstance to show that it was made by the authority or assent of the person

purpose of vindicating the validity of mortgages of ships. It was entitled, A Treatise on the Mortgage of Ships, as affected by the Registry Acts; and it contains a view of all the discussions on the question. The same doctrine is maintained in Mr. Patch's late Practical Treatise on the Law of Mortgages, p. 34. Mr. Holt, in a note to his Reports of Cases at Nisi Prius, vol. i. 603, fell into the current error, that upon a contract of mortgage, in respect to a British registered ship, there was no equity of redemption, and that the ship became absolutely the property of the mortgagee, without any relief to be afforded at law or in equity; but subsequently, in his elaborate treatise on shipping, he adopts the doctrine in Thompson v. Smith, as being in conformity with the letter and spirit of the registry acts. Holt on Shipping, vol. i. 306-312. The statute of 6 George IV. c. 110, removed the difficulties which attended the doctrine of mortgages under the former statutes, by declaring that the transfer of ships, by way of mortgage, or by assignment in trust for payment of debts duly registered, should be valid, and pass the interest according to the purposes of the transfer. The acts of 3 and 4 William IV. c. 54, which was a substitute for the former, has a similar provision. The treatise of Mr. Wilkinson, on "The Law of Shipping as it relates to the Building, Registry, Sale, Transfer and Mortgages of British Ships," &c., is recommended to the profession as a very useful work.

Le Cheminant v. Pearson, 4 Taunt. Rep. 367.

b6 Vesey's Rep. 739. 15 Ibid. 68. Bloxham v. Hubbard, 5 East's Rep. 407. • Pardessus, Cours de Droit Com. tome iii. 11, 12. Boulay Paty, tome i. 257-260.

named in it, and who is sought to be charged as owner. Without proof to connect the party with the register as being his direct or adopted act, the register has been held not to be even prima facie evidence to charge a person as owner; and even then it is not conclusive evidence of ownership. The cases of The Mohawk Insurance Company v. Eckford, decided in the New-York Court of Common Pleas in 1828, and Ring v. Franklin, in the Superior Court of that city in 1829, went upon the same ground, that the register, standing in the name of a person, did not determine the ownership of the vessel, though it might, perhaps, be presumptive evidence, in the first instance. An equitable title in one person might legally exist, consistently with the documentary title at the custom-house in another.c

*151

*(4.) Of part owners.

The several part owners of a ship are not partners, but tenants in common. Each has his distinct, though undi

Tinkler v. Walpole, 14 East's Rep. 226.

M'Iver v. Humble, 16 ibid. 169.

Bas v. Steele, 3 Wash. The interest that appears

Fraser v. Hopkins, 2 Taunt. Rep. 5. Sharp v. United Insurance Company, 14 Johns. Rep. 201. Colson v. Bonzey, 6 Greenleaf, 474. Cir. Rep. 381. 1 Greenleaf on Evidence, sec. 494. upon the registry is held to estop the owner from setting up a claim to any other interest; but if he deals as owner of a larger share, he is liable to others in that proportion. This is the English rule upon the policy of the registry acts. parte Yallop, 15 Vesey, 60.

b 2 Hall's Rep. 1.

Ex

By the French law, a verbal sale of a ship may do as between the parties, but not as respects the claims of third persons. It has been, at all times, the policy of their law to require the written evidence of a sale. Formerly, every sale was required to be attested before a notary, but now a private instrument is sufficient. But the law of France places very material checks upon the transfer of ships; for, in order to bar the rights and claims of third persons, it is requisite that the vessel make one voyage at sea at the risk of the purchaser, and without opposition from the creditors of the vendor; otherwise their claims are preferred to the title of the purchaser. If the vessel be sold while on a voyage, that voyage is not computed, and it requires a new voyage subsequent to such sale, to bar the rights of privileged creditors. This privilege, under the French ordinance of 1681, applied to creditors of every description existing at the time of the sale; but under the new code of commerce, it would rather seem to be confined to the specified class of privileged creditors. Ord. b. 2. tit. 10. Des Navires, art. 2, 3, and Valin's Com. ibid. tome i. 602. Code de Com. art. 193, 194. 196. Boulay Paty, Cours de Droit Com. tome i. 168. 170.

& Ex parte Young, 2 Ves. & Bea. 242. 2 Rose, 78, note. Ex parte Harison, 2