
    Luther Bixby et al. versus The Franklin Insurance Company
    A bill of sale is not necessary to transfer property in a ship.
    The bill of sale and customhouse register or enrolment, are not conclusive evidence of property in a ship.
    A party interested in a ship, but «hose name does not appear in the customhouse documents or bill of sale, is not obliged, for this reason merely, to disclose the nature of his interest at the time of getting insurance, unless he is questioned in this respect by the underwriters.
    This was assumpsit on a policy of insurance made by the defendants, on the 3d of January, 1825, insuring 1500 dollars on the brig Columbia, valued at 2000 dollars, and 2500 dollars on her cargo, for a voyage from Boston to a port or ports m the island of St. Domingo, and thence to her port of discharge in the United States. The brig sailed on the voyage on the 7th of January, bound for the city of St. Domingo, as the mate testified, and on the 10th met with a storm, which occasioned the injury for which the loss was claimed. After the weather moderated, she bore up for the most convenient port and made that of Paix, in the island of St. Domingo, but found it impracticable to make the necessary repairs there or at any other port at which she touched in the island. She subsequently went into Maragoan, where the cargo was discharged ; and temporary repairs being there made, she sailed thence to Wilmington in North Carolina, where thorough repairs were made ; after which she returned to Maragoan, and took a return cargo, which she brought to Boston. On the trial, the defendants, m order to diminish the plaintiffs’ claim for seamen’s wages, victualling, &c. proposed to show by the log-book of the former voyage, that the brig had, under the same master but a different mate, made a voyage from Wilmington to Maragoan, and thence to Boston, as a ground of presumption that the same voyage had been intended in this instance ; and so, that she had not gone out of the course of the voyage on which she was in fact destined. This testimony was rejected by the Chief Justice, before whom the trial was had.
    The policy was made in the names of Bixby, Valentine & Co. and Joseph Hibbert, the master. The firm of Bixby, Valentine & Co. consisted of Luther Bixby, J. J. Valentine, anc* Orpheus Holmes. Before this copartnership was formed, the brig belonged, in equal shares, to Holmes and Hibbert, in whose names she continued to be registered at the custom house after the partnership was formed in 1824, until the loss took place, and afterwards until she was sold by the assured. Holmes had not made any formal transfer of his half of the brig to Bixby, Valentine & Co. by a bill of sale ; but when the copartnership was established, he was credited in the books of the firm for the value of one half of the brig, which was treated as the property of the company, and the repairs made upon her from time to time, until she was sold, were paid for by them. On the 4th of January, the day after the policy was made, Holmes and Hibbert surrendered their enrolment, and took out a register for the brig, when Holmes made oath that he and Hibbert were the only owners of the brig ; and when she was afterward sold, the bill of sale was made by Holmes and Hibbert only.
    The defendants objected to the payment of the loss on the ground, 1. That Bixby and Valentine had no legal interest in the vessel ; 2. That if they had any insurable interest, it was not insured by this policy.
    The jury assessed damages on the ground of a partial loss.
    
      Shaw and Peabody, for the defendants.
    The log-book should have been admitted.
    
      March nth.
    
    The old authors all say that a transfer of a ship should be by writing. See Story’s Abbott, (ed. 1829,) 1, cites The Sisters, 5 Rob. Adm. R. 138; Weston v. Penniman, 1 Mason, 317; 3 Stark. Ev. 1156. This Court have decided that a registered owner is liable for repairs. Tucker v. Buffington, 15 Mass. R. 477. Written evidence of ownership is required in courts of admiralty; 1 Mason, 317; and this is a question in respect to which the rules of those courts are entitled lo great weight. It is moreover important that the documents should show the real owners, in order to prevent secret trusts and liens, and to protect the rights of creditors and other persons. In this case there was no delivery of the vessel to Bixby and Valentine, unless there was a constructive one. Holmes and Hibbert alone made the bill of sale of her afterwards. Tl the company had an interest which they could insure, it was such a one as they were bound to disclose to the underwriters. Higginson v. Dali, 13 Mass. R. 101 ; Riley v. Delafield, 7 Johns. R. 522.
    
      March 23d
    
    
      Hubbard and Fletcher,
    
    
      contra, said, that though the maritime law, as administered by courts of admiralty, might consider the customhouse documents as conclusive evidence of the property in the vessel, yet this rule had never been adopted in the courts of common law; and they relied upon Lamb v. Durant, 12 Mass. R. 54 ; Bartlett v. Walter, 13 Mass. R. 269 ; Taggard v. Loring, 16 Mass. R. 336 ; United States v. Willings, 4 Cranch, 48 ; Wendover v. Hogeboom, 7 Johns, R. 308.
   Parker C. J.

delivered the opinion of the Court. We are of opinion that the proof of property in the vessel insured is sufficient. Holmes, being the owner of one half, could transfer by a contract to sell, accompanied with possession in the purchasers. When he was admitted into the partnership, his moiety of the vessel was turned into the common stock ; the entry in the books of the firm was, between Holmes and his partners, a sufficient transfer ; and the accounts kept of the proceeds of the vessel and of the repairs, prove a use and possession by them, which is at least equivalent to a formal delivery at the time of the transfer.

The fact of the apparent ownership from the documents in the customhouse, and the new register in the names of Hibbert and Holmes after the transfer to the company, do not affect the question of property, unless the sale should be contested by a creditor of Holmes ; and then they might be prima facie evidence that the property was his. We do not find, that a bill of sale or other instrument in writing or under seal is essential to the transfer of a ship, more than of any other chattel. Such a document may be required in the admiralty courts , but we are not aware that the principle has been introduced into the common law. The cases of Lamb v. Durant, and Taggard v. Loring, in our own Reports, establish a contrary doctrine. We think a bargain, a consideration paid and a delivery, will pass the property from one to another, in a ship or othei vessel. Inconveniences may arise in foreign countries and in the customhouse, from the want of a bill of sale; but the transfer is good between the parties.

Then the question remains, whether the plaintiffs were bound to state their title to the underwriters. This point has been settled in the case of Locke v. The North American Ins. Co. 13 Mass. R. 61; in which, after an examination of the authorities, the Court came to the result, that the special nature of the title need not be disclosed unless asked for.

In this case, there would have been no difficulty in the abandonment. Holmes was the registered owner of one ha'ff; he was one of the insured ; he could not deny the joint interest of his partners, having made his moiety a part of the partnership stock ; and an abandonment by the partners would have transferred the moiety to the underwriters.

The log-book of a former voyage was inadmissible as evidence in this case, as it is a document only for that voyage to which it relates. To use it in the present case, would be altogether improper, as it is unsupported by testimony, and in truth is a journal of proceedings affecting other interests and other parties.

Judgment according to verdict. 
      
       See 2 Phillips on Ins. 36, 37,38) Ring v. Franklin, 2 Hall. (New York,) 1.
     
      
       See 2 Phillips on Ins. 31, 32; Old v. Eagle Ins. Co., 4 Mason, 390.
     
      
       See 2 Phillips on Ins. 81, 82; Ring v. Franklin 2 Hall, (New York,) 1
     