A ship is a personal chattel although it is one of a peculiar character. The universal rule in regard to the sale of chattels is, that the want or delay of possession by the purchaser is a badge of fraud which may defeat the sale. This rule applies to the sale of a ship, but with some modifications, arising from the peculiar character and use of the chattel. For a ship may be sent to sea, go around the world, or be absent for an indefinite period, passing from port to port, as profitable engagements offer. But the owner must not in the mean time be unable to sell his ship because he is unable to deliver possession. In reference to personal chattels generally, delay in transferring the possession will not defeat the sale, if the delay be brief and explained, and justified by circumstances. The reason of this rule applies to the sale of a ship, so that, as we apprehend, no delay whatever would defeat the sale, provided first, that the sale was a transfer on good consideration and in good faith, and second, that every practicable transfer of papers and of register was made, and such notice was given to the master and other parties as the case may require. We believe that such a sale, so attended, does not give to the purchaser a mere inchoate right to be completed by possession, but passes to the purchaser the whole property in the ship, subject to being divested by his laches in taking possession; and we do not believe that such laches would be proved merely by the fact, that a second purchaser or an attaching creditor had used means to get possession before the first purchaser. We think that, generally, if not always, the first purchaser may await her arrival in her home port. The rule of law must be, that the first purchaser is bound only to do at once * what has been already indicated, and afterwards to use reasonable means and reasonable speed in taking actual possession; the laches which would defeat his possession being only actual negligence. (q) 1 It is an interesting question, how far the entry of a transfer in a custom-house record, or a registration of the purchaser as owner, is a public notice to the whole world? It is well settled in England, that the register is only a private instrument, and not a public record, (r) and not even prima facie evidence to

(o) In Mellish v. Motteux, Peake, Cas. 115, when a ship was sold, "with all her faults," it was held that the seller most disclose a fault which the buyer could not possibly ascertain. But the law is now as stated in the text. Baglehole v. Walters, 8 Camp. 154; Schneider v. Heath, 3 Camp. 506. As to the effect of these words when there is also a distinct representation as to the same particular fact, see Fletcher v. Bowsher, 2 Stark. 561; Shepherd v. Kain, 5 B. & Ald. 340; Dyer v. Lewis, 7 Mass. 284; Taylor v. Bullen, 5 Exch. 779, 1 Eng. L. & Eq. 472.

(p) Ballast does not pass. Kynter's case, 1 Leon. 46; Lano v. Neale, 2 Stark. 105; Burchard v. Tapscott, 3 Duer, 363. As to a boat, see Starr v. Goodwin, 2 Root, 71; Briggs v. Strange, 17 Mass. 405. The cargo of a whaling vessel does not pass by a sale of the ship's stores, and their appurtenances. Langton v. Horton, 5 Beav. 9, 23 Legal Obs. 524. As to a chronometer, see Langton v. Horton, 6 Jurist, 910; Richardson v. Clark, 15 Maine, 421, 425. The rudder and cordage purchased for a ship are part thereof. Woods v. Russell, 4B. & Ald. 942; Wood v. Bell, 6EI. & BI. 355, 86 Eng. L. & Eq. 148; Baker v. Gray, 17 C B. 462, 34 Eng. L. & Eq. 387.

(q) As between the parties to a sale the property in the goods sold will pass to the vendee, although the possession may remain in the vendor. But under the statutes of 13 Elizabeth, to render the transfer valid to third parties without notice, there must be a change of possession. But where actual delivery is impossible, symbolical delivery is sufficient, provided the purchaser, as soon as he is able, takes actual possession. See Ex parte Matthews 2 Ves. Sen. 272; Atkinson v. Mailing, 2 T. B. 462; Hay v. Fairbairn, 2 B. & Ald. 193; Portland Bank v. Stubbs, 6 Mass. 422; Portland Bank v. Stacey, 4 Mass.

661; Putnam v. Dutch, 8 Mass. 287; Lamb v. Durant, 12 Mass. 54,56; Tucker v. Buffington, 15 Mass. 477; Badlam v. Tucker,

1 Pick. 389; Gardner v. Howland, 2 Pick. 599; Joy v. Sears, 9 Pick. 4; Pratt v. Parkman, 24 Pick. 42; Turner v. Coolidge, charge those who are not proved to be parties to it by their own act or assent, although their names appear upon it; (s) nor is the register by itself evidence in a suit between third parties of the national character of the vessel. (t) The later American cases (u) conform to the English cases on this subject, and it follows, that a party who appears on the register to have the legal title, and whom it is sought to charge on that ground, is not estopped by the register from proving that the actual beneficial ownership is in a third party, although it might be prima facie evidence against him. (v)

2 Met. 350; Winsor v. McLellan, 2 Story, 492; Brinley v. Spring, 7 Greenl. 241; Morgan v. Biddle, 1 Yeates, 3; Wheeler v. Sumner, 4 Mason, 183; D'Wolf v. Harris, 4 Mason, 515; Conard v. Atlantic Ins. Co. 1 Pet. 386, 449; Ingraham v. Wheeler, 6 Conn. 277; Ricker v. Cross, 5 N. H. 570.

(r) Flower v. Young, 3 Camp. 240; Pirie v. Anderson, 4 Taunt. 652.

1 Russell v. O'Brien, 127 Mass. 349; Dempsey v. Gardner, id. 381.

♦276 *B. - Of the. Sale of the Ship by the Master.

A ship is not unfrequently sold by the master. If the ship be so sold by the express authority of the owner, it is simply a sale by the owner through an agent, who may as well be the master as anybody else. And the transaction is then subject to the common law of agency. Far more frequently, however, a sale of the ship by the master is made without express authority, upon an exigency, and from necessity.

In relation to such a sale two rules are quite certain. The first is, that a master has no such power excepting from necessity. (w) The second is, that a sufficient necessity gives him this power. (x)

It is extremely important to ascertain what this necessity must be; and it is as difficult as it is important. In various cases courts have used various phrases for the purpose of making this

(s) Baldney v. Ritchie, 1 Stark. 338; M'lver v. Humble, 16 East, 169; Fraser v. Hopkins, 2 Taunt. 5; Cooper v. South, 4 Taunt. 802.

(t) Reusse v. Meyers, 3 Camp. 475. (u) Jones v. Pitcher, 3 Stew. & P. 135, 155; Ring v. Franklin, 2 Hall, 1; Weston v. Penniman, 1 Mason, 306; Leonard v. Huntington, 15 Johns. 298; Bixby v. Franklin Ins. Co. 8 Pick. 86; Colson v. Bonzey, 6 Greenl. 474; Lord v. Ferguson, 9 N. H. 380; Lincoln v. Wright, 23 Perm. State, 76.

(v) Howard v. Odell, 1 Allen, 85; Myers v. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204, 209, affirmed in the Exchequer Chamber, 18 C. B. 886, 36 Eng. L. & Eq. 350; Hackwood v. Lyall, 17 C. B. 124, 33 Eng. L. & Eq. 211; Mitcheson v. Oliver, definition. It has been said that it must be "a moral necessity," (y) "an imperious, uncontrollable necessity," (z) and that it is sufficient if the jury are told that the sale is "necessary," without adding any qualification. (a) A consideration of all the cases in the light of the reason and principle of the rule, leads us to doubt whether anything better can be said, than that such a sale is justified only when the master can do nothing else to save what remains of the property for the benefit of all concerned.

5 Ellis & B. 419, 32 Eng. L. & Eq. 219; Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146; Mackenzie v. Pooler, 11 Exch. 638, 34 Eng. L. & Eq. 486.

(w) Somes v. Sugrue, 4 Car. & P. 276; Cannan v. Meabnrn, 1 Bing. 243; Idle v. Royal Exch. Ass. Co. 8 Taunt. 755; The Fanny & Elmira, Edw. Adm. 117; Pope v. Nickerson, 3 Story, 465; Robinson v. Commonwealth Ins. Co. 3 Sumner, 220; Patapsco Ins. Co. v. Southgate, 5 Pet. 604; New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387. The whole law of the sale of the ship by the master, is considered in The Amelia, 6 Wallace, 18.

(x) The Catherine, 1 Eng. L. & Eq. 679; The Glasgow, 28 Law T. Adm. 13, and cases infra.

We think that a test which has sometimes been applied to measure this necessity is not an accurate one. That test is this: Would the owner, if a prudent and reasonable man, and present *at the time, have made the sale? (b) The objec tion to the test is, that such an owner then* and there present might have weighed the expediency of various courses of conduct, each of which might offer its advantages; whereas a master has no such power. He can only sell when he must. The law-merchant does not clothe him with any general power to act for all concerned, but only gives him this power when somebody must exercise it, to prevent an inevitable waste of property.

At the same time it is now equally certain, that the necessity of the sale is not to be determined by subsequent events. (c) If a ship, wrecked and lying high and dry, is sold by the master, and is drawn off at the next high tide, it does not follow certainly that the sale was not justified; because the sale was necessary, if at the time an honest and rational view of all then existing facts and probabilities would have led to the conclusion that it was necessary. The master must of course have acted in good faith, and in the exercise of a sound discretion; although both these circumstances may exist, and yet the sale not be necessary.

We do not think that the mere want of funds would of itself constitute a sufficient necessity to justify a sale by the master. (d)

(y) Somes v. Sugrue, 4 Car. & P. 276; Pope v. Nickerson, 8 Story, 504; The Ship Fortitude, 3 Sumner, 248.

(z) Peirce v. Ocean Ins. Co. 18 Pick. 88.

(a) Prince v. Ocean Ins. Co. 40 Maine, 481. In Post v. Jones, 19 How. 150, the court held, that a sale of derelict property, in a distant ocean, where there was no market and no competition, to a person who had it in his power to save the crew and cargo, and drove a bargain with the master, was invalid, although the forms of a sale at auction were had.

(b) Hayman v. Molton, 5 Esp. 65. (c) The Brig Sarah Ann, 2 Sumner, 215, affirmed on appeal, New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387; Idle v. Royal Exch. Ass. Co. 8 Taunt. 755; Fontaine v. Phoenix Ins. Co. 11 Johns. 298; Hall v. Franklin Ins. Co. 9 Pick. 484; The Henry, 1 Blatchf. & H. Adm. 465.

(d) See American Ins. Co. v. Ogden, 20 Wend. 287; Ruckman v. Merchants Ins. Co. 5 Duer, 842; Allen v. Commercial Ins. Co. 1 Gray, 154.

A ship cannot often, if ever, be in a place and condition in which, if funds were procurable, they would repair and save her, and yet she would be destroyed by the delay requisite to communicate with the owners. And it is quite certain, that if the master can communicate with the owners before making the sale, either by sea intercourse, or land intercourse, or now by telegraph, or by all of these combined, he must delay his sale until he receive instructions, unless this delay imports the destruction of the property. The old rule, that a master has this power if the ship be wrecked abroad, and not if it be wrecked on the coast of his own country, was founded upon this principle. (e) But the rule has disappeared, and given place to the question of possibility *of instructions. (f) For if he can become the agent of the owners with instructions, he cannot make himself their agent from mere necessity. (g)