in respect to every species of personal property, is quite certain; it is, that an oral sale for a valuable consideration, with delivery of possession, passes the property in the thing sold, absolutely, and is itself a completed transaction, which no writing, however convenient, or even requisite, on other grounds, can make more perfect. If we begin with this rule, the obvious question suggested is, whether this rule applies to shipping also; and the equally obvious answer is, that it must so apply, unless there be some rule or provision of law which makes the exception.

The earlier statutes of registration do expressly make this exception; but only for a specific and exactly defined purpose; and by a familiar rule of law this expression should exclude the implication of any further effect. This question, however, has passed under adjudication; and we have an opinion, cited before, which we regarded as authoritative, that "the registry acts have not, in any degree, changed the common law as to the manner of transferring this species of property."1 But there may be such a rule, derived from the known and established "Lex Mercatoria;" and this we may gather from a sufficiently ancient, recognized, and universal custom of merchants. We do not, however, find any evidence of such a custom on this point as would have the force of law.

Undoubtedly, as has been already intimated, the usage of merchants in all nations, the repeated statements of writers of authority, and indeed the nature of the property, lead to the inference that a transfer of a ship by a written instrument of some kind is usual and proper. But further than this we cannot go, because we see no sufficient ground for saying that what may even be called the rule of practice in this behalf has anywhere, by mere usage, the force of law. We doubt whether such intimations as occur in Jacobsen's Sea Laws,2- that the writing is indispensable, are to be taken as literally and ex

actly true.

Sometimes this is said to be the rule of the English admiralty. In much the strongest case, however,3 Lord Stowell goes

1 Weston v. Penniman, 1 Mason, 306, 317, per Mr. Justice Story.

2 Book 1, ch. 2, p. 21.

The Sisters, 5 Rob. Adm. 155.

no further than to say, that "a bill of sale is the proper title, to which the maritime courts of all countries would look. It is the universal instrument of transfer of ships, in the usage of all maritime countries; .... it is what the maritime law expects, what the court of admiralty would, in its ordinary practice, always require." But the case did not turn on this question; and these remarks are, to a certain extent, obiter; and if the whole case be examined it will be seen, we think, that Lord Stowell regarded the general question as an open one. Immediately after the words just quoted, he refers to the English statute of registration, which, as we have seen, requires such instrument in writing in the most positive terms, declaring, indeed, that no transfer without it shall be valid or effectual for any purpose whatsoever, in law or in equity. It cannot, therefore, be suprising to find all the English courts, whether of law or of equity, asserting that any transfer of a ship is incomplete and ineffectual, unless there be a bill of sale.1

They have a reason for this in the stringent provision of their own statute. We have no new reason for it here. And whether the views we have above expressed as to the reason of the difference be accepted or not, it would seem that no court in this country would be justified in supposing this difference between the American and the British statutes to be merely accidental, or in holding that the American statute was intended to express the same thing as the British, when its language is so entirely different.

It is, moreover, to be noticed that the English courts of equity seem disposed to confine the operation of this clause within strict limits. Só far as the decisions of this country, out of admiralty, go, we have in the first place very positive declarations of common law courts, that the property in a ship may pass like that of any other chattel, without any instrument in writing. This would seem to settle for us the law on this subject, aside from the statutes, or from an admiralty construction or application of them. But we have in the next place, in 1817, a positive declaration by a 'court exercising full admiralty

1 See Ex parte Halkett, 19 Ves. 474, 475; Atkinson v. Maling, 2 T. R. 462, 466; Sutton v. Buck, 2 Taunt. 302.

powers, that the United States "registry acts have not in any degree changed the common law as to the manner of transferring this species of property."

" 1

Here would seem to be a plain assertion that the common law rule above stated is in admiralty the rule as to shipping. But the very next sentence is, "To be sure, a bill of sale is necessary to pass the title of a ship; but this does not depend upon any enactment peculiar to our municipal law, but grows out of the general maritime law, which requires such a document as the proper muniment of the title of the ship." It might seem that these passages are to be reconciled only by supposing that the court, by the "common law," mean to include the lex mercatoria or "the general maritime law" as a part of it, and that this requirement of a written instrument thus becomes a part of the common law. But, an examination of the whole case, or even of the whole paragraph in which these passages occur, would show, we think, that this was not the meaning of the court. And if it was, it was certainly an obiter opinion, not called for by the facts, nor by the questions raised, nor by the decision, for this distinctly sustains a merely equitable title, resting upon no bill of sale whatever. In Philips v. Ledley, the court said: "The difference between the law of England on this point, and the law of the United States, is striking."

Thus far, then, we have no case in any American court, in which the rights of any party are made to depend upon this rule, or are distinctly affected by the assertion of it. But it may seem the case of Ohl v. Eagle Insurance Co.3 goes this length. It involves directly the question of title to a ship. The plaintiff endeavored to maintain a title to one half of a ship by a merely oral transfer; and he was not permitted to do so. Story, Justice, saying, "I think that a title to a ship cannot pass by parol, when she is sold to a purchaser;" and he quotes with approbation the remarks of Lord Stowell which we have cited above. But when we look at the facts in the case, the force of the language is very much abated. We find that the plaintiff had received a bill of sale of the ship to

1 Weston v. Penniman, 1 Mason, 306, 317.

21 Wash. C. C. 226, 229.

8 4 Mason, 172, 390.

himself and another; and he undertook to show that the bill of sale was in fact intended to pass the property in the whole ship to him alone. But says Story: "The legal title passed to both; and to introduce the parol proof would be to contradict the direct allegations of the deed." This was, of course, made impossible by the most familiar rules of the law of evidence; that is, of the common law, without any reference to the law merchant. The admission of this proof would have materially varied the meaning and effect of a written instrument of title, and that a sealed instrument, by parol evidence. Only to say that this could not be permitted, would have been abundantly sufficient to decide the whole case. So far, therefore, as this case is to be regarded as authority, we must consider the preceding remark of the court as either altogether obiter, or as applicable only to facts like those that the court were then considering.

On the whole, therefore, and as a conclusion from all these premises, we should say that there was no case in America in which a purchaser in good faith of a ship, or a part of a ship, was dispossessed of his property by the operation of that rule; or, in other words, because the purchase, or transfer to him, had not been made by means of, or accompanied by, any written instrument. We are confident that no court of common law would ever apply this rule to such a case, and with such an effect, unless so far as they might be constrained by the Statute of 1850. That is, no court of common law would consider a written instrument absolutely indispensable, and an oral transfer without one necessarily void and of no effect whatever. And still less would a court of equity. And as a court of admiralty always possesses and exercises full equity powers, we are of opinion, that in any such case, where the equity or moral justice of the case required it, even a court of admiralty, if it considered a written instrument indispensable, would either require of the seller that he should make such instrument as the law required, or, acting upon a familiar equity principle, would consider that to be done which ought to be done, and assuming that such written instrument had been made, would protect the rights of the purchaser accordingly.1

1 That Lord Stowell did not intend to assert as a positive rule, that a bill of sale is in all cases indispensable to the transfer of property in a ship, and that he considered it a

SECTION II.

OF THE TRANSFER OF A SHIP BY BILL OF SALE.

In England, the first bill of sale, by which the property in the vessel passes from the builder to the first purchaser or owner, is

question open to argument, appears to be the import of his concluding words in the case of The Sisters, 5 Rob. Adm. 155, 160. "Whilst Charnock was left in possession of the bill of sale, such a delivery as is here said to have taken place could not be a delivery of the title to the property. It was merely putting the property into the hands of another, for the purpose of executing a particular contract, but which contract was in fact never executed. Nothing less than an express declaration, made by Charnock to Tubbs, 'I deliver this to you for the use of Marsden,' could fairly raise the argument, how far delivery, coupled with the correspondence, could be held equivalent to a bill of sale." But see The Helena, 4 Rob. Adm. 3.

That, independently of the registry acts, no bill of sale was necessary to transfer the property in a British vessel, would seem to follow from those cases which have determined that, where these acts do not apply, the ownership may be, at least primâ facie, established by evidence of possession under claim of title, or other matter in pais, as in the case of any other chattel. Robertson v. French, 4 East, 130; Thomas v. Foyle, 5 Esp. 88; Pirie v. Anderson, 4 Taunt. 652; The Nostra Signora, 1 Dods. 290. See, also, Bas v. Steele, 3 Wash. C. C. 381; United States v. Amedy, 11 Wheat. 392, 409; Hozey v. Buchanan, 16 Pet. 215.

Under the American registry acts it is well settled, that a parol sale of a ship with delivery is good to pass the title from the vendor to the vendee, although the privileges of an American bottom are thereby forfeited. Wendover v. Hogeboom, Anthon's N. P. 121, 7 Johns. 308; Taggard v. Loring, 16 Mass. 336, 340; Lamb v. Durant, 12 Mass. 54; Bixby v. Franklin Ins. Co. 8 Pick. 86; Weaver v. The S. G. Owens, 1 Wallace, Jun. 359; Fontaine v. Beers, 19 Ala. 722; Leonard v. Huntington, 15 Johns. 298; Badger v. Bank of Cumberland, 26 Maine, 428; Vinal v. Burrill, 16 Pick. 401; Barnes v. Taylor, 31 Maine, 329; Mitchell v. Taylor, 32 Maine, 434.

Nor is the national character, ipso facto, gone by such a transfer, but the registry act makes the production of a bill of sale requisite to entitle the ship to be registered anew, and the want of such new registry forfeits the national character. If, therefore, a bill of sale is executed at any time before application made for a new registry, it is sufficient. United States v. Willings, 4 Cranch, 48; Hatch v. Smith, 5 Mass. 42, 53.

The effect of the forfeiture is not that the ship acquires the character of an alien ship for all purposes, but that she loses the privileges of an American vessel. Fontaine v. Beers, supra.

The difference in the result of a non-compliance with the terms of the registry acts in the two countries has been well established in the case of other provisions common to the acts, and classed with them and enforced by the same penalties as the requirement of an instrument in writing, thus affording a strong presumption, independent of direct authority, that this diversity extends to the clause requiring such instrument.

Thus the same section requires that the bill of sale shall "recite the certificate of