
    The Parker Mills, Plaintiff and Appellant, v. Edward H. Jacot and James C. Willett, Sheriff, &c., Defendants and Respondents.
    L. Under the act of Congress of July 29, 1850, (U. S. Statutes at Large, vol. 9, p. 440,) a bill of sale, or conveyance of a vessel, is void as against an execution creditor of the vendor, unless the bill of sale or conveyance be recorded in the office of the Collector of the Customs where such vessel is registered or enrolled, or unless such creditor, at the time of levying his execution, have actual notice of such bill of sale or conveyance.
    2. In a suit b3r the vendee against such creditor and the officer levying the execution, to recover possession of the vessel, a nonsuit is.proper where actual notice, to the vendee and sheriff, of the bill of sale is not proved, and the evidence given is not sufficient to justify a jury in finding the fact of actual notice.
    3. It is not enough that they have knowledge of circumstances calculated to lead to inquiry, if, with the inquiry made, the facts do not .convey actual notice of the bill of sale or conveyance.
    (Before Bosworth, Oh. J., and Hoffman and Robertson, J. J.)
    Heard, December 12, 1860;
    decided, April 20, 1861.
    Appeal by the plaintiffs from an order denying a motion for a new trial. This action was brought by the Parker Mills, a Massachusetts corporation, against Edward H. Jacot, a judgment and execution creditor of one Edgar Sprague, and also against James 0. Willett, Sheriff of the city and county of Few York, to recover the possession of a certain schooner called the Ann S. Salter, and damages for the detention.
    . It was tried before his Honor Justice Mohceiee and á jury, on the 7th of Fovember, 1859.
    The defendants justified the taking under a judgment and execution in favor of Jacot against Edgar Sprague, who, they alleged, was the owner.
    It appeared by the evidence that Sprague was the owner of the vessel on the 9th day of March, 1857, on which day he assigned it, with other property, to Thomas Collier and Elijah S. Robinson.
    The assignment after reciting Sprague’s indebtedness to the plaintiffs in the sum of $71,000 or thereabouts, which he was unable to pay at that time, and his desire of providing for the payment thereof by an assignment of part of his property for that purpose, (also his having it in contemplation to make a general assignment of all his property and effects for the benefit of his creditors at large,) assigned this schooner in trust to sell the same, and after paying expenses, to pay and discharge all the indebtedness of said Sprague to the plaintiffs, and if thereafter there should be a surplus remaining, then to pay over and return the same to the said party of the first part, or in case of his making the contemplated general assignment, then to account for, and make payment of such, surplus to the assignees named in such assignment.
    On the 27th of April, 1857, Sprague conveyed the vessel by bill of sale, to Haham Stetson, the Treasurer of the plaintiffs and for their benefit in consideration of $6,000. This was testified to be more than the value of the vessel.
    It appears Sprague did, on or before the 26th September, make a general assignment.
    The execution under the judgment of Jacot, was issued December 5, 1857; the judgment was recovered June 27, 1857. The plaintiffs were then in possession .under the bill of sale.
    The evidence of actual notice to the defendants, at the time of the levy upon and talcing of the schooner, of the conveyance thereof to the plaintiffs, is as follows, viz.:
    Thomas Collier, one of said assignees, testified, (among other things,) thus: “The schooner Ann 8. Salter came to the possession of the assignees on the 9th day of March, 1857; the assignees sold the vessel to the plaintiffs; it was a verbal sale, made on the 24th day of March, 1857, for the price of $6,000; after the parol agreement we executed a bill of sale; at the time of the sale to The Parker Mills the vessel was at Hew Orleans; she came into Hew York about the middle of April on account of a necessity; she then proceeded to her place of destination at Portsmouth.”
    Edward 0. Delavau, testified as follows: “In the month of September, 1857, between the 15th and 26th, witness, as attorney for the plaintiffs, went to Hewark, and there saw the Sheriff of the county in which that town is located. Between the 20th and 25th of said September, witness saw the defendant Jacot, in relation to an attachment issued by said Jacot, at Hewark, H. J., and the attaching the vessel Edward Eranklin; witness told said defendant that the property levied on by him in Hew Jersey, was not the' property of Edgar Sprague, but of the Parker Mills; that Sprague had made an assignment of that vessel, among other property; a partial assignment to Messrs. Oollier and Robinson; and that he had also made a general assignment to another assignee; the proceedings in Hew Jersey were thereupon discontinued.”
    John P. Knowles, Counselor-at-Law, of Providence, R. I., examined under a commission, in answer to the third interrogatory said: “Concerning the schooner named, I know only this, namely, that she arrived in Providence between the 17th and the 27th of September, 1857; that on a day intermediate, I went on board her with Deputy Sheriff R. W. Potter, for the purpose of attaching her on a writ, in which Edward H. Jacot was plaintiff, and one Edgar Sprague was named defendant, founded on a judgment of Court for about six thousand ($6,000) dollars; that on conversing freely with the captain (whose name I do not recollect), and on examining the papers he exhibited, I decided not to attach the vessel, especially as the said Potter positively declined doing so unless a bond of indemnity could be given him by responsible parties; the captain disclaimed any knowledge of any Edgar Sprague, nor, as I recollect, did that name appear in any paper exhibited; I left the vessel at the wharf in Providence, axnattached, and know nothing of her subsequent history.”
    In answer to the seventh, he said: “I doubt not that I (did communicate all I knew about the matter to Mr. Jacot, prior to the 27th of September, 1857; I am confident I informed him that he must give a bond, with sureties .satisfactory to the Sheriff, if he wished me to attach the ■schooner on his writ against Sprague; he proffered no bond, and that ended my agency in the matter.”
    Roger U. Potter, Deputy Sheriff of Providence county, R. 1., also examined on commission, in answer to the third interrogatory, testified thus: “I had a writ in September, 1857, given me by John P. Knowles, Esq., upon which I was requested to attach Edgar Sprague’s interest in the •schooner Ann S. Salter, lying at Fox Point, in the port of Providence, Rhode Island; I went on board and inquired for the captain; I found him and told him my business; he said that Edgar Sprague had no interest in the vessel, and hadn’t had for a long time; I requested him to show me the papers—her registry or license; he showed them to me, and I examined them; I was satisfied upon this examination that Edgar Sprague had no interest in said vessel; I told Mr. Knowles that I should not attach the vessel unless I had a bond of indemnity from reliable persons ; I gave him back the papers, and left the vessel unattached, and never received a bond; Mr. Knowles told me he should telegraph, and I told him if a bond was given, that I would take' the papers and attach her.”
    Abner C. Fish, being duly sworn, says: “ That he is now, and has been since May, 1857, thó master of the schooner Ann S. Salter; was at Providence, Rhode Island, with the schooner, in summer or fall of 1857; a man came on board, and said he had an attachment against the vessel; there were two gentlemen together; I asked for whose account the attachment was; they said on account of Edgar Sprague; I told them the vessel did not belong to Edgar Sprague; I showed them my papers. (Witness produced enrollment marked A.) These are papers I exhibited to them; I was employed to take charge of the vessel by C. 0. Sprague, clerk of the ‘Parker Mills’ at Wareham ; I received the certificate of enrollment a year ago last May; I received it from the deputy collector at Wareham, David Eye; the paper is just as I received it from the collector; the erasures were on it when I received it.”
    Cross-examined: “0. 0. Sprague is brother of Edgar Sprague; I showed my papers to both of the men that called down to the vessel.”
    This certificate of enrollment A, was read in evidence, is dated May 25, 1857, is signed “D. Eye, D’y Collector,” at the port of Eew Bedford, and recites that Abner 0. Fish made oath that the vessel was built at Chat-ham, Connecticut, in 1853, “ as appears by register granted at Eew Orleans, the 27th of January, 1857, and numbered (19) nineteen,” and declares that “the said schooner has been duly enrolled at the port of Hew Bedford.”
    It was admitted, that as between Stetson and the plaintiffs, the latter were owners of the schooner. There was no evidence that Willett took the schooner by directions of Jacot. When the plaintiffs rested, the defendants produced in evidence the judgment and execution under which the levy was made, and then moved for a nonsuit on the following grounds :
    “1st. That the defendant Jacot had no notice of the assignment from Sprague to Collier & Robinson.
    “2d. That said Jacot had no notice of the title of the plaintiffs.
    “ 3d. That a bill of sale was from Sprague, and not from the assignees.
    “4th. That no notice to defendant Willett was proven.
    “5th. That the assignment of Sprague to Collier & Robinson was void.”
    The Judge granted the motion and the plaintiffs excepted. The plaintiffs moved for a new trial. From an order denying that motion, the present appeal is taken.
    
      E. S. Van Winkle, for plaintiff.
    I. Ho notice of the assignment to either Jacot or the Sheriff was necessary. The want of such notice did not alter the ownership of the vessel, and could only protect trespassers acting in good faith from liability for any damage beyond actual damages. Hor would the want of such notice give any rights except as against Sprague and his immediate vendee or assignee; "none against purchasers from such vendee or assignee. (9 U. S. Stat. at Large, p. 440.)
    H. But Jacot had notice; and the Sheriff could get no right of property, except through Jacot.
    The order should be reversed, and a new trial granted.
    
      R. Goodman, for defendant Jacot.
    
      A. J. Vanderpoel, for defendant Willett.
    
      
      The assignment to Oollyer & Robinson, and the bill of sale to Stetson, not having been recorded in the office of the Collector of Customs where the vessel was registered or enrolled, and no “actual notice” of the assignment or bill of sale being shown to have been given to the defendants, the transfers are “not valid” as against them or either of them.
    1. The statute of July 29, 1850, provides that no bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation or conveyance be recorded in the office of the Collector of the Customs where such vessel is registered or enrolled: provided, that the lien by bottomry, &c. (U. S. Stat. at Large, vol. 9, p. 440 ; Dunl. Ed. of Laws, 1233 ; Potter v. Irish, 21 Bost. Law. R., 103.)
    2. “Rotices are actual, when they are directly given to the party to be affected by them; or constructive, when the party, by any circumstance whatever, is put upon inquiry, which amounts, in judgment of law, to notice, provided the inquiry becomes a duty.” (Bouv. L. D., tit. Notice.)
    “Of actual notice, little can be said. It requires no definition, and it need only be remarked that, to constitute a binding notice, it must be given ly a person interested in the propei'ty and in the course of the treaty for the purchase.” (1 Story Eq., § 400 ; 3 Sug. on Vend., 452 ; 2 Spence’s Eq. Juris., 753 ; Coote on Mort., 370 ; Pomroy v. Stevens, 11 Metc., 244 ; Hewes v. Wiswell, 8 Greenl., 94 ; Flagg v. Mann, 2 Sumn., 486, 554, 555 ; Cushing v. Hurd, 4 Pick., 253 ; Dey v. Dunham, 2 John. Ch. R., 182.)
   By the Court—Robertson, J.

The plaintiff’s right to recover depends upon the act of Congress of July, 1850, (9 U. S. Stat. at Large, p. 440,) if that be a constitutional enactment. It requires bills of sale and conveyances to he recorded in a Collector’s office in order to be notice to any one save grantors and mortgagors and their representatives, and persons having actual notice of them. It is contended on behalf of the plaintiff that information sufficient to put parties upon inquiry is actual notice, within the meaning of the statute; that mere want of notice could not alter the ownership of the vessel, but only served to protect honest trespassers from anything more than mere actual damages, and merely took away the rights of a vendee claiming under an unrecorded bill of sale, and not those of tona fide purchasers from him.

The plaintiffs had an ample opportunity to give actual notice to both defendants of their interest and the instrument under which they claimed, before any sale by the latter; the responsibility of keeping them in the dark rests upon the plaintiffs ; the prejudice, therefore, if any, is of their own seeking. There is no great hardship in compelling a vendee under an unrecorded bill of sale, to give full notice to a party seizing the vessel by legal process, while much harm is done to the creditor of the vendor by concealing such bill until the trial. The language of the statute is very comprehensive, it makes a sale by an unrecorded instrument void as against parties not actually notified. I do not see how that can be confined to a restriction of damages, or to the vendee; it includes the whole world save the excepted class.

The question still remains as to the meaning of the word “ actual.” The evidence approaches very nearly, if ■ not quite, to proof of information sufficient to put the defendants upon inquiry; The plaintiffs were in actual possession of the vessel which forms the subject of controversy; the defendant Jacot, was 'informed that the plaintiffs’ agent had notified his attorney and an officer, who were prepared to seize her in another port under an attachment, that she had been enrolled in a different port, and the vendor and debtor had not owned her for a longtime. But the use of the word “ actual ” in the statute renders such evidence unavailing. This statute is probably a copy of a law of the State of Massachusetts in relation to the registry of instruments affecting real estate; for it contains the words “ heirs and devisees ” who are not the successors to the title of personal property. (Mass. R. S., ch. 59, § 28.) Before the last revision of her laws, the word “ actual ” was not in such act, but was introduced in such revision and has been since held to exclude all constructive notice. (Pomeroy v. Stevens, 11 Metc., 244 ; Flagg v. Mann, 2 Sumn. R., 486, 554, 555.) A similar doctrine was held in Maine even when the word “ actual ” was not in the statute. (Hewes v. Wiswell, 8 Greenl., 94.)

Even in regard to constructive notice, considerable modifications have been lately made of the doctrine. In Goodman v. Simonds, (20 How. U. S. R., 343), notice was held to mean knowledge, as one of its usual and appropriate significations. In Hewitt v. Loosemore, (9 Eng. L. and Eq., 35,) constructive notice was defined to be “ know- “ ledge imputed by the Court upon presumptions too strong “to be rebutted, that such knowledge must have been “ communicated.” These decisions go far to approximating the two kinds of notice, and in a statute, according to its subject, the approximation may be very close. In Dey v. Dunham, (2 J. C., 182 ; S. C. on app., 15 J. R., 555,) it was held that a notice to break in on the registry acts must be such as will affect the subsequent purchasers with fraud; it is not enough if only sufficient to put him upon inquiry. Implied notice was held not to be sufficient in Jackson v. Given, (8 J. R., 137 :) The doctrine laid down in Dey v. Dunham, is reiterated in Jackson v. Van Valkenburgh, (8 Cow., 260 :) And Jackson v. Elston, (12 J. R., 452,) declares that explicit notice of the prior unregistered deed must be given. The language of all the cases in regard to notice under registry acts, seems to be even stronger than those in case of negotiable instruments diverted from the object for which they were made. Even without the word “ actual ” in the statute, I think the notice in this case was not sufficient, with it, there clearly was not notice.

Although I find difficulty in ascertaining any principle upon which the Federal Congress has power to legislate upon the transfer of vessels, not equally applicable to the sale of any other species of property, either subjects or instruments of commerce, or even to every act in the course of commerce, every mercantile dealing, including prevention of frauds and effects of policies of insurance; and although such power does not come within that of regulating' the national character of vessels, nor is it in aid of revenue laws or a regulation of commerce under section 3 of section 8, article 3 of the Constitution of the United States, I am loth to pass upon the question of the constitutionality of the law under consideration ; and leave it to the highest court in this- State or the Federal Courts to pass upon it: being content with noticing it: particularly as the counsel did not discuss it on the argument.

These views render my examination of other points in the case unnecessary. The order should, therefore, be affirmed, with costs.

Hoffman, J.,

delivered an opinion, which after discussing questions other than that of notice, proceeds as follows, viz.:

We come, therefore, as to both defendants, and in every aspect, as to the defendant Willett, to the consideration of the question mainly argued and relied upon by the defendants, viz., the effect of the act of Congress of July 29,1850, upon the case. (U. S. Stat. at Large, vol. 9, p. 440.)

This point was not explicitly and in terms taken upon the trial. It is supposed to have been included in the point that neither defendant had notice of the assignment or bill of sale. Both counsel advert to the statute in their points; the plaintiffs seeking to avoid its effect. Much of the argument on the appeal turned upon it.

It seems to have been conceded and assumed that no registry, under the act in question, of the assignment or bill of sale, had ever been made.

The act in question provides, “That no bill of sale, mortgage, hypothecation or conveyance of any vessel, or part of any vessel, of the United States shall be valid against any person, (other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof,) unless such bill of sale, mortgage, hypothecatiou or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled.’’ Other sections provide for the mode of recording’, giving certificates, &c.

■ My brother Bobertsoe has expressed some doubt as to the constitutionality of this act, whether it can justly come within the power of regulating the national character of vessels, under the power to regulate commerce.

Professor Parsons, in his Elements of Mercantile Law, (pp. 329, 330 and note) has intimated similar doubts. He adverts to the case of recording, required by State laws, of mortgages of personal property, and he observes: “If we suppose the statute to be constitutional, of which however we do not feel certain, we should say that it controlled and superseded the State statute, so as to make that unnecessary and ineffectual; and therefore a record in the custom houseonlywouldbesufficient.” In Thompsons v. Van Vechten, (at Special Term in June, 1857 ; see 6 Bosw., 373,) I had this act under consideration, and observed that, prior to this statute, the registry or enrollment established merely the national character of the vessel. It was not necessary, to make the title valid, that a bill of sale should be enrolled or registered. (Hozey v. Buchanan, 16 Pet., 215 ; Wendover v. Hogeboom, 7 John. R., 308 ; Weston v. Penniman, 1 Mason, 306.)

Hicks v. Williams, (17 Barb. R., 523,) was referred to, where it was held that a canal boat was not a vessel of the United States, within the act. Ho question as to the legality of thé act was raised. •

Thomas v. The Steamboat Kosciusko, was also noticed. (11 Leg. Obs., 38.) Betts, J., held, that in that Court (District Court of the United States,) at least, the act of Congress must prevail, whatever might be the question as to the subsistence of the State acts. That question did not arise.

I added “ In my opinion, this act of Congress prescribes a rule as to all vessels of the United States as fully obligatory upon the State tribunals, as upon those of the United States; that it does not supersede or abolish statutory regulations of the State upon the subject, which are not inconsistent with it. It imposes another condition as to the validity of a mortgage as to these particular vessels. Hence if a mortgage of such a vessel is not registered at the custom house, it will be invalid as to purchasers or mortgagees without actual notice, although the State law may have been fully complied with. If it be registered at the custom house, and a State statute has been neglected, it will give place to a subsequent transfer also registered, and as to which the State law has been fulfilled. And so in case of successive mortgages, all registered, and all made in accordance with the law of the State, the priorities will be settled by the dates. I do not see any serious difficulty in thus holding the legislation of the State and Congress to be concurrently in force.”

Mr. Parsons refers to the case of Fontaine v. Beers, (19 Ala., 722.) In that case it was held, that the statutes of the State requiring the registration of mortgages did not apply to vessels navigating the ocean. The evidence of title to such was to be looked for in the ship’s papers, and the recording under the act of Congress.

In Potter v. Irish, (21 Monthly Law Reporter, 103,) the claim of an attaching creditor under the Massachusetts law was held good against the mortgagee of a vessel, whose mortgage was not recorded at the Custom House at which she was registered, though recorded elsewhere.

I have not met any authority in the reports of the Supreme Court of the United States, upon the act, except that of Hays v. The Pacific Mail Steamship Company, (17 How. U. S. R., 597,) in which it was referred to in connection with the registering act of 1792. “These provisions,” say the Court, “and others might be referred to, very clearly indicate that the domicile, or home port, of a vessel that requires to be registered, is the port at which she is registered, and which must be the nearest to the place at which the owner or owners reside.”

The home port of the vessel in question was New York, and it was held she was not liable to taxation by the State of California. She was not properly within its limits, so as to become incorporated with the other personal property of the State. She was temporarily engaged in lawful trade and commerce, with her situs at the home port where she belonged, and where the owners were liable to be taxed upon their capital.

The constitutional power to regulate commerce has authorized Congress to adopt the system of registration and enrollment of vessels, by means of which a national character is given to them, and a compliance with which is indispensable for the obtaining that character and the advantages which arise from it. I do not see why it is not equally constitutional to impose a condition on the mode of transfer of such national vessels, to keep the evidence of the title to them recorded and open.

Lord Teetebden says that the great, and, perhaps, the only original object of the British statutes, was, to advance the policy of the State by the notoriety of property, obtained through the medium of a public register, a measure adopted, with numerous improvements, from the wisdom of former times. The privileges belonging to a national vessel are to be preserved and continued in the manner pointed out by the statute.

The power to regulate commerce embraces within its scope the power to regulate navigation. (Gibbons v. Ogden, 9 Wheat., 1 ; City of New York v. Miln, 11 Peters, 102 ; and Veazie v. Moor, 14 How. U. S. R., 568.)

In The People v. Brooks, (4 Denio, 469,) Justice Beardsley says: “The word commerce, as used in the Constitution, is not limited to the mere buying and selling of merchandise, and other commodities, but comprehends the entire commercial intercourse with foreign nations, and among the several States. It includes navigation, as well as traffic, in its ordinary signification, and embraces ships and vessels as the instruments of intercourse and trade.”

In The United States v. Coombs, (12 Peters, 72,) it was decided that, under, this provision of the Constitution, an act of Congress subjecting to indictment all plunderers of the property of wrecked vessels, or their passengers, extended to a pillage committed above high water mark. The Court held that it had not jurisdiction under the other clause as to admiralty jurisdiction.

But upon the point of the notice or information acquired by Jacot, not being such as prescribed by the statute, I concur with Justice Bobebtsoh’s result. The statute only remedies the want of registry as to those who have actual notice of the bill of sale, mortgage, &c. The acts of our State as to recording deeds and mortgages provide, that, if not recorded, they shall be void as to subsequent purchasers or mortgagees, in good faith, and for valuable consideration. This language lets in the doctrine of notice; and it is settled that implied or presumptive notice may be equivalent to actual notice. (Kent’s Com., vol. 4, p. 171., &c.) It is not necessary to enter upon the cases and their distinctions upon this doctrine. (1 R. S., 756, § 1. As to mortgages of chattels, 2 R. S., 136, 3d ed. ; act of 1833, ch. 297, § 1.)

The statute of fraudulent conveyances relative' to lands, (2 R. S., 134, § 1,) is, that conveyances or charges on land, made to defraud proven subsequent purchasers for a valuable consideration, shall be void. And the second section is, that no such conveyance or charge upon lands shall be deemed fraudulent in favor of a subsequent purchaser who shall have actual or legal notice thereof at the time of his purchase, unless the grantee was privy to the fraud intended.

This statute changes the rule of law under the 27th of Elizabeth, by which even a mere voluntary conveyance, fraudulent only by construction of the law, could be set aside by a subsequent purchaser, although he had notice of it. (Roberts on Convey., 35 ; White v. Hussey, Prec. in Ch., 13 ; Doe v. Manning, 9 East., 59 ; 18 Ves., 90, 110 ; Sterry v. Arden, 1 John. Ch. R., 261 ; Newman v. Rusham, 9 Eng. Law and Eq. R., 410.)

Chancellor Kent, in Sterry v. Arden, adverts to the doubts expressed whether the better construction of the statute would not have been to support the voluntary conveyance against purchasers for a valuable consideration with notice, (and to that opinion he strongly inclined,) but that it was pretty evident the allusion there was only to cases of actual notice, where the purchaser was intentionally and premeditatingly defeating the fair claims and expectations of the prior grantee. (9 East., 71 ; 6 Bos. & Pull., 335 ; 1 Fonbl., 269, n. 9 ; Atherly on Marriage Settlements, 197, n. 1 ; Sterry v. Arden, in the Court of Errors, 12 John., 536, Revisers’ Notes, vol. 3, p. 654.)

The phraseology of the statute above cited is, “ actual or legal notice.” In Williamson v. Brown, (15 N. Y. R., 354,) the different kinds of notice were much discussed. It was a case of an unrecorded mortgage and a subsequent grant. Mr. Justice Paige speaks of the question as being whether the plaintiff, (the grantee,) was to be deemed to have had, at the time of his purchase, legal notice of the prior unrecorded mortgage. It is manifest that he uses the term as equivalent to implied or constructive notice. Mr. Justice Selben has given a description of notices, perhaps more complete and accurate than any to be found elsewhere. “Notice is of two kinds; actual and constructive. Actual notice embraces all degrees and grades of evidence, from the most direct and positive proof to the slightest circumstance from which a jury would be warranted in finding notice. It is a mere question of fact, and is open to every species of legitimate evidence, which may tend to strengthen or impair the conclusion. Constructive notice is a leg’al inference from established facts. A recorded deed is an instance of constructive notice. Actual notice of it or not is of no consequence. Notice to an agent is constructive notice to the principal; and it would not, in the least, avail that the agent had not communicated the fact. The law imputes notice, whether he has it or not. Legal or implied notice, therefore, is the same as constructive notice, and cannot be controverted by proof'.”

The question of notice of the prior mortgage in the case was then treated as a question of fact, upon the facts found by a referee, who had stated that the plaintiff had not actual notice of the mortgage at the time of his purchase, but had sufficient information to put him upon inquiry; that he pursued such inquiry to the extent of his information and belief, and did not find that such mortgage existed, or had been given. A judgment for the defendant, on the ground that the plaintiff was chargeable with notice of the mortgage, was reversed by the Court of Appeals.

It is, then, I apprehend, too strong a proposition to say that actual notice implies, and can only be satisfied by absolute proof of a direct personal communication of the fact or instrument in question. But in deciding what short of that will suffice, we are to bear in mind the strong leaning of the later English cases, and of the Supreme Court of the United States, especialty in commercial matters, to require much more to displace the right of an honest third party, on the ground of notice, than was before deemed requisite. In the case of The Belmont Branch of the State of Ohio v. Hoge, at the present General Term, (7 Bosw., 543,) I have examined and stated these authorities ; and the language of the learned Judges in Williamson v. Brown, (ut supra) is to the same effect.

It may be stated, then, as a just conclusion from these authorities, and the general principles they involve, that the evidence must be, such as to leave no room for doubt, that the party had information communicated to him of the existence of the bill of sale, mortgage or conveyance. The proof must be of a communication to him individually, and of the document; and if sufficient, it will establish knowledge. What is not required is, rigid proof of the exhibition of the instrument itself to the party personally.

How by the test of such rules, the evidence here is very defective and insufficient. There is no proof that the attorney or the Deputy Sheriff themselves, saw either transfer. On the contrary, it rather is to be inferred that they saw only the enrollment, and heard only that Sprague was not the owner. Knowles, the attorney, states he has no doubt he communicated to Jacot all he himself knew. I do not think that this would have sufficed had he really seen the transfers. Clearly it is now insufficient. The communication by Delavan to the defendant, related to another vessel, and the statement that Sprague had made a general assignment, was also much too vague to charge defendant with notice under the rules I have deduced.

I had some doubt whether the question as a matter of fact, ought not to have gone to the jury ; but I am clear that had they found for the plaintiff on this proof, the court ought to have set their verdict aside; and in such a case a nonsuit must be supported.

The order should be affirmed, with costs.

Bosworth, Ch. J.

The evidence was insufficient to charge Jacot; and as to him the complaint was properly dismissed, unless it be essential, to uphold the decision, that it was rightly granted on the grounds on which it was asked. Had it been moved on the ground that there was no evidence of the levy being ordered or requested by Jacot, that defect might have been supplied. But if granted because there was no proof satisfying the conditions of the act of Congress in question, the case could not have been sustained by proof of Jacot’s participation in the levy.

Assuming the act of Congress of July 29, 1850, to be constitutional, its effect is to make every .transfer of a vessel of no force or effect as against creditors or vendors not having actual notice of it, unless it be recorded as that act requires, although it be in the possession of a purchaser in good faith, who has paid full value at the time it is seized on process at the suit of such creditor. Such I think is the necessary import of the statute. • If so, then this action cannot be sustained on the evidence given, as neither the defendant Jacot nor the Sheriff is proved to have had actual notice of the assignment of it; and the evidence given does not warrant the jury in finding actual notice. Hot seeing clearly that such an act is void, I concur in affirming the order.

Order affirmed.  