3, 1800, has on this point adopted the rule formerly acted upon. in England, so that in the United States the jus posliminii continues until a sentence of condemnation and no longer.

Whenever any vessel or goods belonging to any person resident within or under the protection of the United States, which have been captured by an enemy, or under authority, or pretence of authority, from any power against which the United States may have authorized defence or reprisals, shall be recaptured by any vessel duly authorized by the government, before they are condemned as prize, they are to be restored to the former owner on payment of a salvage of one-eighth part if recaptured by a public vessel, and of one-sixth part if the recapture be by a private vessel of the United States. But if the recaptured vessel, either before the capture or after, has been set forth and armed as a vessel of war, she is not to be restored under a salvage of onehalf her value.

"If the vessel or goods thus recaptured, belonged to the United States, they are to be restored, and salvage is to be paid from the treasury. For the recapture of an unarmed vessel, or goods in her, by a private vessel, the rate of salvage is one-sixth, by a public armed vessel one-twelfth. For the recapture of a public armed vessel or goods in her, when made by a private vessel; one-half is to be paid, and one-fourth when made by a public armed vessel.

In the case of the property of allies or friends retaken by vessels of the United States, before condemnation, the act of congress has adopted the principle of reciprocity. If the allies restore American property when recaptured by them, on payment of salvage, the United States does the same, and takes the proportion allowed by the ally as their rule. If that proportion be not known, the same salvage is allowed as for recaptured American property. If it be unknown whether the ally would restore or not, still the liberality of the United States directs restitution. But if by the law or usage of the ally the property of American citizens in similar circumstances would not be restored; the courts of the United States will also refuse to restore.

Salvage, when accruing to a public armed vessel, is to be divided among the commanders, officers, and crew in the same manner as prize money. When it accrues to a private vessel, it is to be divided among the owners and company concerned in the recapture according to any agreement they may make. If they do not agree then among such persons, and in such proportions, as the court which has jurisdiction of the case shall direct. See Wreck.

SALE OF GOODS. If a man agree for the purchase of goods, he shall pay for them before he carries them away, unless some term of credit is expressly agreed upon.

If one man says the price of this article is 100 dollars, and the other says I will give you 100 dollars, but does not pay immediately, it is at the option of the seller whether he shall have it or not, except a day was given for the payment.

If a man upon the sale of goods, warrants them to be good, the law annexes to this contract a tacit warranty, that if they be not so, he shall make compensation to the purchaser; such warranty must, however, be on the sale. But if the vender knew the goods to be unsound, and hath used any art to disguise them, or if in any respect they differ from what he represents them to be to the purchaser, he will be answerable for their goodness, though no general warranty will extend to those defects that are obvious to one's senses.

If two persons come to a warehouse, and one buys, and the other to procure him credit, promises the seller, "If he does not pay you, I will," this is a collateral undertaking, and void, without writing, by the statutes of frauds; but if he says, "let him have the goods, I will be your paymaster," this is an absolute undertaking as for himself, and he shall be intended to be the real buyer, and the other only to act as his servant. 1 Salk, 27. 2 T. R. 73. After earnest given, the vender cannot sell the goods to another without a fault in the vender ; and therefore if the vendee does not come and pay, and take the goods, the vender ought to give him notice for that purpose; and then if he does not come and pay, and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person. 1 Salk, 113.

An earnest only binds the bargain, and gives the party a right to demand; but demand without payment of money is void.

If A. contracts with B. for 50 jars of oil, which he is bound to deliver, and tenders him only a part, A. is not bound to accept them. 5 Mod. Rep. 71. See Agreement, Auction, Factor, Fraud.

SHIPPING. The property in shipping may be acquired either by persons properly qualified, building a ship at his own expense, or purchasing it of persons competent to transfer it.

Upon the death of a person possessed of a ship, or a share of a ship, his interest will devolve upon his personal representatives.

The property in shipping has from very early times been evidenced

by written documents, which is a characteristic distinction of this species of personal property, by this means the buyer is enabled so accurately to ascertain the title of the person offering to sell, that he can seldom if ever be deceived. With respect to the mode of assigning and delivering possession of a ship, whether she be at home or abroad, the following observations must be attended to:

When a ship is here in the country of its owner, and a delivery and actual possession is possible, such delivery is necessary to give a perfect title to the buyer in case of sale of the whole ship; but in case of sale of a part only it has been thought sufficient if the vender having delivered the whole of his title, ceased from the time to act as a part owner, actual delivery of a part being impossible. If a part owner, however has the actual possession of the ship, he may in such case deliver the possession; but if he have not the actual possession, the possession of the other part owners may reasonably be the possession after the sale.

If a ship be abroad, a perfect transfer of the property may be made by assignment of the grand bill of sale, and delivery of that and the other documents relating to the ship, as the delivery of the key of a warehouse to the buyer of the goods contained therein is held to change the property of the goods, such delivery being the mode of enabling the buyer to take actual possession as soon as circumstances will admit, but due diligence should be made on the return of the ship to take possession. 4 Mass. Rep. 661.

*

Another mode of acquiring property in a ship is by capture from an enemy in time of war, legalized and sanctioned by a sentence of condemnation in some courts of the capturing power constituted by the law of nations. Capture by pirates will not divest the property from the owners; but capture by an enemy in a war between two nations, wholly divests such property, and transfers it either to the captor or sovereign of his state.

t

The sentence of a court of competent jurisdiction over the subject matter of its judgment, is conclusive as to the title to the thing claimed under it. 4 Cranch, Rep. 241, 293. Dall. 54, and 1 John. Rep. 471. If a claim be set up under a sentence of condemnation of a foreign court, the courts of the United States will examine as to the jurisdiction of the foreign court, and if the jurisdiction cannot consistently with the law of nations be exercised, the sentence will be disregarded. 4 Cranch, ibid. 1 John. Rep. ibid.

It has been held that the mortgage of a ship is liable to repairs, the same as a mortgage of a term is liable to rent reserved. Westerdale v Dale, 7 R. R. K. B. 3 and 6. Ships captured by the Algerines, which are now considered as established governments, and sold by authority of the Dey, rests a good title in the purchaser. The Helena, 4 Rob, Adm. R. 3.

A vendee of a ship whatever equitable title might exist in him is not liable for supplies before the legal title was conveyed to him, and registered in the manner prescribed by the registry acts, and when he was unknown to the tradesman who supplied the materials. Twentyman v. Hart, Starkies, Rep. 366.

A ship should have the documents according to the law of the coun try to which she belongs according to treaties, and according to the law of nations, and that all the documents should be correctly and legally framed, otherwise she will be liable to be condemned. Baring & others v. Royal Exch. Ins. Co. 5 East, Rep. 99.

Mortgage. A mortgagee not in possession and not known to the party, is not liable for the stores supplied by the captain's orders, or for services rendered, or necessaries furnished to a vessel, on the credit of the mortgagor, or other person having the equitable title. Neither is a mortgagee of a ship at sea, merely by the delivery of the documents acquire such a possession as to be liable to the master for wages accruing after the date of the mortgage. Twentyman v. Hart, Starkies, Rep. 366. The Mohawk Ins. Co. v. Eckford & Co., NewYork, January, 1828. Thorn v. Hicks, Cowan's Rep. 697.

Wages. By the practice of the United States the wages and provisions of the crew during the necessary detention of the vessel for repairs requisite in the course of the voyage, by seas or perils insured against, are considered and included in the perils of the sea and made chargeable upon the insurer. Walden v. Lekay, 2 Caine's Rep. 263. Barker v. Phenix Ins. Co. 8. John's Rep. 307. Padelford v. Boardman, 4 Mass. Rep. 548. It has likewise been held that the wages and provisions of the crew during a capture and detention for adjudication are a proper subject for general adjudication. Leavenswork v. Delafield, 1 Caine's Rep. 504. Kingston v. Girard, 4 Dallas, Rep. 274.

SHIP OWNERS. In case any owner should obstruct the interest of his copartners by opposing any voyage advantageous to the general concern, the admiralty court will take a stipulation from those

who desire to send the ship on a voyage, in a sum adequate to the value of the partners disapproving, either to restore the ship within a limited time, or pay the value of the shares. In this case the dissentient

part owners bear no proportion of the expenses of the outfit, and are not entiled to a share of the profits, but the ship sails wholly at the charge and risk, and for the benefit of the others. This security may be taken upon a warrant obtained by the minority to arrest the ship, and it is incumbent on them to have recourse to such proceedings as the best means of protection; or if they forbear to do so, they should never omit to notify their dissent to the others, and if possible to the freighters of the ship, as an action cannot be supported by one part owner against another to recover damages for fraudulently sending a ship to sea that was lost. L.. F. Raym. 15, 2 Pet. Adm. R. 288.But where one part owner had forcibly taken a ship out of another's possession, secreted her, changed her name, and a third person had afterwards possessed her, who sent the ship to Antigua, where she was sunk and lost. It was determined that this was a destruction of the ship by means of the defendant, and the plaintiff recovered the value of his share. Barnardiston v. Chapman and another, 1 G. 1st Sir Peter King's cases. In the case of owners of vessels not agreeing as to the sale, the court will order the sale. The case of the Seneca, U. S. Circuit Court, State of New-York.

Responsibility of Ship Owners with respect to repairs. Respecting the repairing and other necessaries for employing a ship in general, one part owner may by ordering these things on credit, make his companions responsible in law for the price. Wright v. Hunter, East's Rep. 20. Yet if the creditor, on this occasion, does not know at the time of other part owners, he may sue him alone who gives the orders.— Doe v. Chippender, Sit. H. T. K. B. 1790. French v. Backhouse,

5 Burr, 2727,

Where a ship has been injured by the wrong or negligence of a stranger, all the part owners should be included in one action for recovery of damages. The same in an action for freight.

Part owners are liable for articles furnished, or work done on the ship, if they are charged to the ship, although the contract was made before they became part owners. Scottin v. Stanley, 1 Dall. Rep.

129.

Owners of ships are liable as part owners in proportion to their respective shares and interest in the ship for the necessary appropriations