possession of the vessel, and for aught that appeared to the Court, he might be then navigating her; and what recourse remained to the plaintiff? this proved the principle of the law laid down in Pothier, (a) that after delivery it was not competent to the purchaser to contest the rights to sell, unless he be disturbed. The Register Act fixed the manner of conveying property in vessels and has prescribed the form of the transfer, but did not annul the transaction of sale as between the seller and purchaser.

In Courts of equity the provisions of the Register Act were less rigidly enforced than in Courts of law, and this Court, exercising an equitable jurisdiction, would enforce a sale, where honesty required it should be enforced. In a case in Vezey junr. it had been decided that a transfer was null because there was no endorsement, and the party was liberated, as otherwise it would be encouraging fraud. But if there could be a doubt on the arguments already submitted, the subsequent promise of the defendant, to pay the purchase money, puts it out of doubt. Pothier, Traité des Ob. No. 457, and seq. that there was a consideration for the promise was evident, as the defendant had the use and possession of the vessel; a subsequent promise of a widow, in support of a promise made by her in the life time of her husband had been held good. 1. Pothier, 237. “Traité des obligations," No. 464.

Bowen, on the same side, contended, that taking the Register Act in its strictest sense, the present case did not come within the Statute, as it was the sale of a Hull, and not of a vessel that was seaworthy and to be navigated. The plea to the action was non assumpsit, and the only question, upon the issue raised, was, whether the defendant undertook and promised as stated in the declaration? there was a great distinction between the sale of a ship, and that of a hull of a ship, and the verdict only found that (a) Pothier, Contrat de vente, Art. préliminaire, &c. No. 48. E2

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a hull had been sold. In this case a bill of sale had been tendered by the plaintiff to the defendant, and it must be considered to have been a legal bill of sale. It was in vain that the defendant now contended, that the person, acting for the owner, was not legally authorized, this could not be presumed. The hull was sold as a common chattel, and not as a ship, and the plaintiff could therefore give the title. Williams v. Millington, 1. H. B. Rep. 81. That the defendant had taken possession of the hull, and had repaired and offered it for sale, under a title acquired from the plaintiff, and he could not then be at liberty to contest that title. In this case the defendant had chosen to go to an expence, which the owner or his agents had not, by rendering the vessel once more seaworthy, this he was at liberty to do; and therefore, the Register had been given to him; but the hull, only, had been sold. He concluded by saying, that the completion of the contract, on the part of the plaintiff, had been fully established by the verdict.

The Advocate General, for the defendant, observed that there was no resemblance between the facts found by the verdict, and the allegations of the declaration, the former, he said, went beyond the latter, and that, being the case, the verdict was bad, as the jury could not find beyond the issue, or any facts that were not pertinent thereto. 2. Bacon's Ab. letter D Special Verdict. The verdict and declaration varied, as by the former, nothing was said of any warranty, on the part of the seller, as stated in the declaration; nor in the declaration was it stated, that at the time of the sale, the plaintiff did not name his principal, and yet it was so found by the verdict. It was the same, with regard to the subsequent promise of the defendant to pay, of which no allegation could be found in the declaration. He contended that when an article was sold, of which the transfer is specially regulated by law, it must be presumed, that the title which the law required, would be given unless there was an express stipulation or condition to the contrary, at the time of the sale; the answer of the defendant, in the present cause, had always been, "shew me your authority to sell, and give me a legal title, and I will pay the money." The case, cited from H. Black, was the sale of a simple chattel, he admitted the principle there laid down, but denied that it was applicable to sales of ships, for the transfer of which, the law had specially provided. The parties were not now contending in a Court of Equity, but in a Court of law, and there would certainly be no justice in condemning the defendant to pay the purchase money and compel him afterwards to seek his title, he added, that in the bill of sale tendered by the plaintiff, the Agent of the proprietor of the vessel was named, but no such disclosure was made at the sale, nor did the plaintiff then name his principal, and he cited Hanson v. Roberdeau, Peakes, N. P. 120. He therefore contended that under the whole circumstances of the case, the plaintiff not being authorised nor able to give a bill of sale of the vessel, according to the requirements of the Register Act, he could not recover, from the defendant, the sum demanded, as the price of the vessel.

Stuart, in reply, said, that the defendant admitted the adjudication, but denied that there had been a legal sale; the verdict however had found the facts necessary for the support of the plaintiff's action, and that finding was conclusive. The principle, contended for by the plaintiff, had been decided in England upon a sale of real property, Gilbert's action of debt, 363. where B was compelled to pay the purchase money, and left to his action of covenant against A, to give and complete the title. When a person acted in the name of another, the presumption must be, that he had an authority to do so, and he was bound to produce and maintain that authority; the case, mentioned

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mentioned in Pothier, of the sale of real property, for which the vendor could not shew a title, was applicable. He contended that the defendant, having taken possession of the vessel after the adjudication, and subsequently promised to pay the purchase money, closed the transaction as to the defendant; for when in the case of a debt contracted by a femme covert, she is benefited, an action will lie against her for the amount, after the death of her husband. In the present instance, the time, which would have been required to procure a title from the owner who resided at a distant port, would have led to a total loss of the vessel, and consequently an immediate sale was necessary, therefore a reasonable time must be given to the plaintiff to procure the title or an authority from the owner to execute it.

The Court on this day delivered their judgment. SEWELL, Ch. J. The circumstances of this case are such, that it will not decide any of the questions which have been raised at the bar, upon the Register Acts. It stands upon other grounds.

In the purchase and sale of ships, the person, who takes upon himself to sell, must have power to sell, and to transfer the owner's right of property for although a sale of goods, or other moveable property, by the person who is in possession, does, in many instances, vest the property in the buyer, even when the seller has neither property in what is sold, nor authority to sell; this cannot take place with respect to a ship, when sold as a ship, (a) though it may with respect to the materials of which a ship is formed, when it is broken up or is become a mere wreck. (b)

Now, it is certain, that the Star was both sold and bought, not as a mere wreck, but, as a Ship, and that she was capable of repair. This is certain,

(a) 1. Abbott, p. 1.... (b) See Reed v. Darby, 10 East. 143.

because she specifically subsisted as a ship, at the time of the sale; because one of the conditions of the sale was, that the Register should be delivered to the purchaser, which could only be for the purposes of navigation; and because she has since been repaired. It is material also to observe, that at the time of the sale, nothing was said, as to the transfer of the property, and that in this respect, the case must therefore rest upon the common principles of Ship Sales.

Upon these grounds, we hold, a valid conveyance of the Star, to the defendant, to have been an implied condition, in the contract between the parties; and as it is evident, that, without title, the ship cannot be of any value to the purchaser, because so situated, the real owner would have a right to claim her at any time, and be entitled to recover, (c) we hold the execution and delivery of a sufficient title, and the payment of the consideration, to be mutual and reciprocal engagements, to be performed at the same time.

Then, what is the title which has been tendered ? It is a deed, purporting to be a conveyance by Mr. Burns, the Auctioneer, and by Mr. Hamilton, the consignee of the Ship, to the defendant; But it is not contended, that, by the circumstances of the case, they are enabled to convey; and it is not shewn, that any authority, to make the transfer, is derived to either of them from the owner. The consideration of the defendant's undertaking has therefore failed, no valid title has been or is tendered, and the plaintiff, therefore has not cause of action for the sum, at which the Star was adjudged by him.

WILLIAMS, J. I concur in the opinion given by the Chief Justice; the defendant could not send the vessel out of this port, without having previously (c) See Reed v Darby, το East. 143.

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