Under "Ship," what passes. against him, as the auctioneer refused to knock it down to his single bidding, he procured a friend to bid a guinea, and then himself gave another bidding; but the whole amount was not more than one-fourth of the value of the barge. The Court were clearly of opinion that a sale under these circumstances could not be supported.' And a court of equity has refused to grant specific performance in a case where the known agent of the vendor had bid for the purchaser, and others of the company were deterred from bidding by that circumstance, under the erroneous notion that the agent was acting as a puffer for the vendor." Under the general word ship, questions have arisen as to details, whether this or that passed to the purchaser by the contract. The writers' on maritime law inform us, that if a ship be sold with the tackle, apparel, furniture, and other instruments thereto belonging, the ship's boat is not conveyed by these words; and they found their opinion upon the authority of those passages of the Roman Law, in which it is said that the boat is not a part of the ship, or of its apparel." In an early case, it was held that common ballast, on board at the time of the sale, did not pass under the word furniture, for the place and purpose of it might be supplied by merchandise ;* and in later times, ballast, known as kentledge, did not pass by a sale of the ship with all stores, tackle, apparel, &c., because it was not expressly described in the contract. In mercantile 1 Fuller v. Abrahams, 3 Bro. & Bing. 116. 2 Twining v. Morrice, 2 Bro. C. C. 326; Sugd. V. & P. c. 1. § 1. Roccus, not. 20; Straccha de Navibus, p. 2, No. 12; Molloy de Jure Marit. bk. 2, c. 1, § 8. The latter adds, that if a ship commit piracy, the boat is not forfeited; and refers to a case in 1 Roll. Ab. 530, for his authority; and Beawes has followed the words of Molloy. But in the case referred to, the boat is not mentioned. 4 Dig. 21. 2. 44. Scapham non videri navis esse, respondit (Alfenus) nec quidquam conjunctum habere ; nam scapham ipsam per se parvam naviculam esse, omnia autem, quæ conjuncta 4 navi essent, veluti gubernacula, malus, antennæ, velum, quasi membra navis esse. 5 Dig. 6. 1. 3. § 1; Armamenta navis singula erunt vendicanda; scapha quoque separatim vendicabitur. Dig. 33. 7. 29; Si navem cum instrumento emisti, præstari tibi debet scapha navis. Paulus Imo, contra; etenim scapha navis non est instrumentum navis, &c. 6 Kinter's Case, Leon 46. Lano v. Neale, 2 Stark. 105. Sale of a ship with her appurtenances did not under the latter word convey any title to the oil to be afterwards acquired in a whaling voyage. Langton v. Horton, 5 Beav. 9. instruments, however, the meaning of general terms is liable to vary according to the context and the purpose of the writing in which they are found, and in accordance with the established usage of the trade, in respect of which the parties are contracting. Thus the fishing outfit of a Greenland whaler was held to be covered by the term "ship" in the 53 Geo. 3, c. 159, the statute which at the time limited the responsibility of owners in certain cases of damage done by their vessel. And yet this outfit is not covered by a policy on the ship with her tackle, apparel, furniture, &c.;' and although Lord Mansfield says that the boats, rigging, and stores, are covered by these words,' it is the common practice in marine insurance expressly to name the boats." From such variety of usage, showing that there is no commonly received acceptation, little assistance can be derived for the interpretation of general terms. His own vigilance must be the purchaser's chief, if not only, reliance in the course of his negotiations with the seller, especially in bargaining for ship-property. For, the statute, as we shall see, prescribes a form of the bill of sale, into which it is assumed there will be no introduction of such representations, as might, if appearing in the written contract, amount to a warranty, and form a ground of action for the purchaser; and it is not decided, and is by no means certain, whether under the 17 & 18 Vict. c. 104, an executory contract can be the basis of a suit for specific performance, or of an action for non-performance. It is true, there are no negative terms in the existing statute, such as were in the previous acts, to nullify for any purpose whatever, in law or equity, such a contract; even the integrity of the register Gibson, 4 C. B. 121; Hughes v. Morris, 8 26 Geo. 3, c. 60, § 17; 34 Geo. 3, By Capture.Restrictions upon. Source of the 2 itself is no longer guarded,' except by affirmative terms declaring that the power of disposing of the property continues to be in the person in whose name it appears on the register; but if the purpose of the register, though now greatly modified from what it was,' appear to the courts to require the exclusion of equitable doctrines with regard to the title to this description of property, there seems to be nothing in the statute against such a construction. If the contract of sale purport to include both the ship and the freight, the contract may be good for the freight though bad for the ship, provided the title to the freight is not conditional on the passing of the ship.ʻ Capture of ships, as lawful prize of war, is the third mode of acquiring this description of property; and fortunately for the world at large, the exercise of this sovereign power by private individuals is restrained within limits, which have been definitely ascertained by the law of nations, and are still strictly observed by the civilised communities of either hemisphere." This right of acquisition cannot be exercised except during the existence of hostilities, or by other than persons duly authorised by one of the belligerent states; but although, in respect of both these conditions, a capture be lawful, no property vests thereby in the captors, until the vessel has been carried into a port of the belligerent state, or of an ally in the war, and is condemned by a court of competent jurisdiction exercising its functions within the same country. These are the general limits imposed upon this extraordinary power. The right of a subject of Great Britain to capture for his own benefit is derived to him from the Crown by express commission called letters of marque and reprisals. Indeed, it is universally received as a necessary principle of public jurisprudence by all writers on the subject, that prize or booty of war is the property of the sovereign :-Bello parta cedunt reipublicæ. A captured ship, therefore, is in this country a droit of the Admiralty, if she has been taken by persons to whom letters of marque have not been issued against the nation to which the prize belonged; and this is not cured by the circumstance of a warrant for issuing such letters to the captors having been sent to the Judge of the Admiralty Court before the capture was made. So that if prize be made of a French vessel by a ship bearing letters of marque against America, such captors acquire no right to the prize; and if another ship, properly commissioned, assisted in the capture, a moiety of the prize still passes to the Crown, in right of its functions as High Admiral. Capture, when lawful, presupposes a state of war; it is itself A Right of War. an act of open hostility; and is a means of legally acquiring property only in so far as it is a right of war. Of the many jura belli, therefore, this one right, subject to what has been said, is coeval with the existence of hostilities; and is, during that period, exercised with the sanction of the law of nations; but if it precede the commencement, or follow the cessation of hostilities ever so little, no property is thereby acquired, and the original owner is not divested of his right. A British ship and cargo taken by an American privateer within the time allowed for hostile capture by the treaty. of peace, and retaken after the expiration of that period, was decreed to be restored to the American captor.' This case of The Somerset, exhibits also the nature of the Inchoate right of right which vests in the captors immediately on the capture property. being made, and before it is sealed with the sanction, and The Elsebe, Maas, 5 C. Rob. Ad. 174, 182; The Melomane, Colas, 5 id. 41, 42; The Thetis, 3 Hagg. Ad. 228, 231; French Guiana, 2 Dodson, Ad. 151, 157; Grotius, lib. 3, c. 6, § 14; Jecker e. Montgomery, 13 Howard (Amer.) R. 515. Le Grand Terrein, Hay & Mar. Ad. 155, 157; La Bonne Amitié, ib. 160; The Xavier, ib. 219; La Mignone, ib. 221; Twee Gesuster, 2 C. Rob. Ad. 284, note. 3 Le Grand Terrein, supra; and cases in preceding note. 4 Before the notification of hostilities, The Sarah and Bernhardus, Hay & Mar. Ad. 175; The Maria Magdalena, ib. 250; after peace concluded, The Somerset, Metherell, 2 Dods. Ad. 56; The Harmony, Norman, 2 id. 78. 5 The Somerset, Metherell, 2 Dods. Ad. 56; S. P., The Harmony, Norman, 2 id. 78. When property is indefeasibly evidenced by the forms of public law; it is an acquisition that has been made and still must be held by force. Our courts have recognised the assignment of it as valid;' our Legislature have provided that it should pass to the personal representatives; but it is still no less liable to be divested in the meantime by recapture. Silent leges inter arma. 2 For the purpose of quieting titles to possession, the modern vested in captors. practice of belligerent powers, constituting the existing law of nations, has been to receive the decree of certain courts, under proper circumstances, as binding and conclusive on both parties. in respect of the right of property in the captured vessel. The prize must be carried by the captors into a port belonging to their own country, or to an ally in the war, and there condemned by a court of competent jurisdiction exercising its functions within the same country. The condemnation therefore of a British ship, captured by a French privateer, in a French prize court sitting in Spain, at that time allied with France in the war, is valid, and conclusive as to the title of a neutral purchaser. But a court of the belligerent state, exercising its functions in a neutral country, is not competent to decree concerning prize; and the right of the original owners not being divested by the sentence of such a court, they are entitled to restitution of the ship on her being afterwards recaptured. Lord Stowell, however, held that the infirmity was cured by a subsequent sentence of condemnation by the Prize Court of the belligerent state sitting within its own territory. 1 Morrough v. Comyns, 1 Wils. 211; 3 The Flad Oyen, Martensen, 1 C. 4 The Victoria, Edw. Ad. 97; The Christopher, Slyboom, 2 C. Rob. Ad. 209; Oddy v. Bovill, 2 East. 473. When Holland was made a French province, the decree of a French Court sitting there was sufficient, Wake v. Hillary, 12 Fac. Coll. (Scotland) 556. 5 The Flad Oyen, Martensen, I C. Rob. Ad. 135; The Kierlighett, Spoerewig, 3 C. Rob. Ad. 99; Havelock v. Rockwood, 8 T. R. 268; in Donaldson v. Thompson, 1 Camp. 429, Lord Ellenborough said that that is to be considered a neutral country for this purpose, in which the forms of an independent neutral government were preserved, although the belligerent may have such a body of troops stationed there as in reality to possess the sovereign authority. 6 The Falcon, Atkins, 6 C. Rob. 194. The word affirming seems to have appeared in the statement of process in this case, but Lord Stowell held the sentence to be valid, understanding that word to be a clerical error, and thereby showing what his judgment |