"I became the owner of the brig and a part of her cargo by purchase, at public auction, in December, 1835, and I immediately begun to make preparations to bring them to this port, (Key West.) The major part of the cargo had been saved by wreckers before the sale." (Record, p. 16.)

Seventh. The plaintiff saved a portion of his purchase.

The plaintiff says: "I immediately commenced making preparations to save my property, and secured and brought some of it to this place, (Key West ;) but in consequence of cold weather and the prevailing winds, some little delay occurred in obtaining wreckers to go up to her." (Record, p. 17.)

Eighth. That on the 26th of July, 1836, some eight months after said plaintiff claims to have purchased said brig and her cargo, she was burnt, by direction of an officer of the navy, to prevent the lead and other articles on board being taken by the Indians.

Lieb and Armstrong, of the navy, certify to William Cooley, under date of July 26, 1836, as follows:

"SIR: We, the undersigned, thinking it best for the public good, did set fire to the brig Gil Blas, that she might become covered with sand, and that all traces of her might be destroyed, to prevent the Indians ever getting from her any lead or any other articles which would be of any use to them." (Record, p. 7.)

Ninth. What articles were taken from the wreck by the wreckers for the captain and owners is not shown, nor does it appear that they took away and carried to Key West for the plaintiff is not proved.

Tenth. The proof does not show what particular articles or what quantity were on board of the brig when she was burnt, though the officers destroying her understood there was lead and some other articles on board.

Eleventh. There is no evidence that the plaintiff, for months previous to the burning, had been taking any measures to save the vessel or to remove her cargo. Both seem to have been abandoned.

Twelfth. The wreckers employed by plaintiff were, in fact, driven off by the Indians.

From the plaintiff's own statement, (Record, p. 17,) it seems he sent wreckers to the vessel, but they were delayed in starting by the cold weather and winds. It is fair to presume that they went as soon as it became a little warmer. A party did go, and they abandoned the work on account of the presence of Indians.

Cooley testifies: "I was employed by John P. Baldwin to get the vessel off and save the cargo. When in the act, witness's family were all murdered by the Indians while residing about nine miles from the vessel; and in consequence of the hostile Indians being so thick on the coast and in the vicinity of the brig, had to abandon the work and discharge a large number of men that I had employed by order of John P. Baldwin.' (Record, p. 23.)

Thirteenth. There is no evidence that the plaintiff made any further effort to save the vessel or cargo.

Fourteenth. There is no evidence of the value of the property on board at the time of the burning, situated as it was in the Indian country, and so distant from Key West.

Fifteenth. There is no evidence what plaintiff paid for the wreck and her cargo, or that he, in fact, paid anything.

Sixteenth. There is no evidence that the wreck and cargo were sold by order of any court having jurisdiction thereof.

Seventeenth. There is no evidence that the captain had any power or authority to make sale of the wreck or cargo; nor is there proof that the person referred to as captain was really such captain.

Eighteenth. The plaintiff produces no bill of sale; nor does he prove any delivery of the property he claims; nor any that he, in fact, paid anything whatever for it.

Nineteenth. There is no evidence that there was a necessity for the captain selling; but, on the contrary, the proof is clear that there was no such necessity at the time of the stranding in 1835.

Rigby says: "Furthermore, this deponent saith that said property could all have been saved had she not have been destroyed." (Record, p. 19.)

Simonton says: "It was not anticipated that the hull could be got afloat, but all the other articles could have been saved without difficulty by the wreckers if she had been let alone by the navy officers." (Record, p. 18.)

The plaintiff said: "That I could and would have saved them, (the vessel and cargo,) that I had the means of so doing, and that they were safe and secure on the beach, and might have remained so for a great length of time had it not been thus destroyed, must be abundantly evident from the depositions annexed, and from the fact that I had, after my purchase, and before she was burnt, saved a portion of the cargo," &c. (Record, p. 17.)

Rigby says: "She (the brig) could have been readily extricated from the beach, and with her cargo brought to this port

"The owners might have saved the brig with ease, and everything in and on her, had she not been thus destroyed." (Record, p. 9.) Twentieth. That it appears from the evidence that when the vessel was first stranded she and her cargo could have been saved, and the cargo was mostly saved; but that afterwards, when the Indians became numerous and troublesome, they could not be saved, and were not, but were abandoned by the agent of the plaintiff.

LEGAL PROPOSITIONS.

FIRST. The plaintiff shows no sufficient evidence of title to either the vessel or cargo.

The plaintiff's claim rests exclusively upon an alleged sale at Key West, by the captain, of the vessel and cargo, which were not present, but were some two or three hundred miles distant, and which was made without delivery or bill of sale, and without proof of consideration, and without proof of any power or authority conferred upon the captain by the owners of either the vessel or cargo. To the validity of such a sale there are several objections:

1. There was no bill of sale.

A bill of sale, by the maritime law, is necessary to transfer a ship or vessel.

In Weston vs. Pinniman, (1 Mason, 306, p. 316,) Judge Story said: "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 it grows out of the general maritime law, which requires such a document as a proper muniment of title of the ship."

In the case of the Two Sisters, (5 C. Robinson, 155, p. 159,) Sir William Scott said: "According to the ideas which I have always entertained on this question, 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, and in no degree a peculiar title deed or conveyance known only to the law of England.

2. The property sold was not present, and no delivery is proved to have been made.

The evidence shows that the property was some fifteen miles from New River, and thirty-five north of Cape Florida, which was some two or three hundred miles northeast from Key West, where the sale is claimed to have been made, and no delivery was or could have been made at the latter place.

Delivery, actual or constructive, is clearly necessary to pass title. We are not to consider the effect of a bill of sale, because none is proved. This is a case of a sale of a ship and cargo hundreds of miles away, where no bill of sale was given and no delivery was made, so that there was neither actual nor constructive delivery; and, without the one or the other, no title could pass. No court has held that the title can pass when there was neither bill of sale nor delivery.

3. There is no evidence that the plaintiff paid any consideration for the assumed purchase of said vessel and cargo.

In addition to the defects above suggested, that there was neither bill of sale nor delivery, the plaintiff does not show that he paid any consideration whatever, without which the title would not pass; there is not an allusion in the evidence that anything was paid, much less how much. The plaintiff may have bid for the vessel and cargo, and the same have been struck down to him in the presence of the witnesses, and they may have deemed this a sale. But clearly it would not constitute a sale. The witness swears to a conclusion of law, instead of swearing to the facts, to enable the court to determine whether there was a sale or not. There is an entire omission of all facts from which the court can come to the conclusion that there was a sale. Without a bill of sale or delivery, or consideration proved, the court cannot say that there was a sale.

In the absence of these facts, there is no evidence which would bar a claim by the owners, should they demand compensation for this same vessel and cargo. There is not enough shown to prove a transfer of their rights, even if the master had the undoubted right to sell.

In Hozey vs. Buchanan, (16 Pet., 215, p. 220,) the Supreme Court held: "But the charge that a bill of sale, accompanied by possession,' constituted a good title in law, is liable to objection. That such an instrument connected with the possession is prima facie evidence of right may be admitted; but in the view of the evidence in the case,

there should have been the qualification that the transfer was bona fide, and for a valuable consideration."

In the present case there was no bill of sale, no delivery of possession, nor proof of consideration.

4. It is not shown that the captain had any authority to sell either ship or carge.

There is no evidence that the master was clothed with any express authority by the owners to sell either. Nor is there any that any court adjudicated the sale. Nor does it appear that a survey was made by the proper persons to consider, advise, or determine as to the propriety of such sale, as is required by the maritime law in all cases where practicable, as it is shown to have been in this case.

There is no proof that there was a necessity for a sale; but, on the contrary, the plaintiff has shown that, at the time of the stranding, and for some time afterwards, the vessel and cargo might both have been saved, although, when Cooley abandoned them, it had become impracticable on account of the Indians.

It is well settled that the master of a vessel has no power to sell a ship or cargo except in cases of absolute and extreme necessity, to be clearly shown.

Abbott, in his treatise, says: "That in extreme cases, and in extreme cases only, he (the master) had the power to sell, as in the instance of a wreck which could not be got off, and ought not to be left to perish absolutely.'

In The American Ins. Co. vs. Centre, (4 Wen., 45, pp. 51, 52,) Walworth, Chancellor, said: "I know of no principle which can authorize the abandonment of a vessel, either in port or elsewhere, merely because materials cannot be had there to make full repairs. If the ship is not injured to a moiety of her value, it is the duty of the master to make her seaworthy, and to proceed on the voyage. "The master is not authorized to sell the ship or cargo except in a case of absolute necessity, when he is not in a situation to consult with his owner, and when the preservation of the property makes it necessary for him to act as the agent of whom it may concern."

In the present case, the plaintiff himself expressly refers to the vessel and cargo after his purchase: "That I could have saved them, that I had the means of so doing, and that they were safe and secure on the beach, and might have remained so for a great length of time had it not been destroyed, must be abundantly evident," &c. (Record, p. 17.)

its

In Gordon vs. Mass. F. & M. Ins. Co., (2 Pick., 249, pp. 262-'3-'4,) Parker, Ch. J., reviews the cases on the subject of the captain's power. He states the case where a survey is necessary, and urges propriety, and quotes with approbation the opinion of Chief Justice Dallas in Ide vs. Exch. Ass. Co., (3 Moore,) which is as follows:

"The right to sell, as between the captain and owners, has been deemed of a very questionable nature; although upon the whole, extracting from the books what seems to be the weight of authority, I conceive that the right to sell must be considered to exist in cases of extreme necessity. A right, however, which in all cases must be strictly watched."

In Hall vs. Franklin Ins. Co., (9 Pick., 466,) it was held: That "the necessity which will justify the master of a ship in selling her is one in which he has no opportunity to consult the owners or insurers, and which leaves him no alternative."

Kent (3 v., 173,) says: "But if the voyage is broken up in the course of it by ungovernable circumstances, the master, in that case, may even sell the ship or cargo, provided it be done in good faith, for the good of all concerned, and in a case of supreme necessity, which sweeps all ordinary rules before it. The merely acting in good faith and for the interest of all concerned is not sufficient to exempt the sale of goods from the character of a tortuous conversion, for which the ship-owner and the purchaser are responsible, if the absolute necessity of the sale be not clearly made out. Nor will the sanction of the vice-admiralty court aid the sale when the requisite necessity is wanting. All the cases are decided and peremptory, and upon the soundest principles, in the call for that necessity.'

The same rules are laid down in Curtis's Rights and Duties of Merchant Seamen, pp. 186 to 189.

In the case of the schooner Tilton (5 Mason, 465,) Judge Story held: "The master of a ship has not, in virtue of his office, any authority to sell a ship, except in cases of extreme necessity, where the vessel is wrecked or ungovernable, &c. If he sells without such necessity, the sale is invalid, notwithstanding he acted in good faith, at least where the contest is between the owner and purchaser."

In the present case there was no necessity of a sale. The plaintiff disproves this necessity, and shows that the vessel and cargo both might have been saved and taken to Key West; and both the captain and he did take a large portion of the cargo from the vessel to that place. If a part of the cargo could be saved, the presumption is undoubted that the whole might have been. The plaintiff himself states, and then proves, that both vessel and cargo could have been got off and taken to Key West. This being so, the captain was under no necessity of selling, and consequently had no power to sell. If he had no power to sell, he could convey no title. It follows that the plaintiff took no title, and now has none to the property for which he claims pay.

It is no answer to say that the owner is not here contesting his right. He may come, and might do so after payment to the plaintiff. The facts now proved would show the property to be his; and if any one is to be paid, it should be him. It is an answer to the plaintiff when his evidence shows that he has no title against the owner. can then have none against any one else.

He

SECOND. The proceedings in the matter of the appraisal of the damages sustained by the plaintiff are no evidence of such damages.

These proceedings are found from pages 6 to 9 in the record, and have no more legal validity than the like statement from any other persons. The judge was not authorized to appoint persons to ascertain the amount of loss sustained. The petition shows that the plaintiff asked for the appraisement, with the view of making the