that case requires the old certificate to be delivered up. It "requires, that when the property is to be changed in the same 'port, then the change shall be indorsed on the registry. This distinction is not repealed by the subsequent act, but improved. Nothing about this is found in the 26th Geo. III. The sub'ject is taken up in 34th Geo. III. c. 68. sect. 15, 16, and 17, all'these I construe together. The 16th section is a restriction on 'the 15th. The 15th applies only to transfers of ships in the 'same port, and the 16th section applying to the same subject, 'but contemplating a temporary absence of the ship, so that the ' certificate could not be had, substitutes the next best thing. 'The penner of this act expected the ship to return to the same 'port. I think the section only applies to ships still belonging to 'that port; but if not, I think that the annulling clause at the 'foot of sect. 16, applies only to the neglect to indorse the transfer upon the certificate of registry within ten days after the ship's ❝ return, otherwise it must include the neglects in the middle of 'the section, viz, by the officers. The 17th section, as well as the ⚫ 16th, is a qualification of the 15th section; the 16th when the ship is absent, and the 17th when the owners, or either of them ' are absent. On what, then, does the registration de novo de'pend ? On 7th and 8th Will. III. sect. 21. which is bare of regu⚫lations, but has the important one of delivering up the old certi'ficate. This subject is taken up by the 22d section of 84th Gep. ‹ III. which hurries ships home when sold at sea, under circum'stances which requires registration de novo at another port. No link in the history of the ship is wanting; a person inquiring at 'Newcastle would be referred to London. I think the delivery of the copy of the bill of sale of no use. The causes of regis'tration de novo are, 1st, Where the ship is sold to another port, by 'statute Will. III.; 2dly, When the certificate is lost; 3dly, 'Where the ship's name is altered; 4thly, Where the certificate is 'wrongfully withheld from the owner; 5thly, Where a part-owner requires it. I think the Fishburn did what was right. If she ' had done otherwise she would not have done enough.

J

• Mansfield, C. J. I doubt, but think the judgment ought to 'be affirmed. The ground on which I think so is, that no copy ' of the bill of sale was sent: no question of reasonable time for 'the sending it arises in this case, because none was sent at all.

If the 16th section had stopped in the middle, it would have been ‹ clear, and the confusion arises from the latter part, which applies

to a new subject, viz. the return of the ship to her own port. What is the object of requiring a copy of the bill of sale to be sent? To give immediate notoriety to the sale, and prevent fo"reigners from trading with British ships. It was intended, for this purpose, that the delivery of the copy should be made immediately. The 16th section receives considerable explanation from the 17th. The 16th applies only to the sale of a ship being at sea. The 17th contemplates the case of a sale when the owners are abroad. In that case it allows six months for the <delivery of the bill of sale, and ten days for the indorsement af❝ter the ship returns to any port in this kingdom. It has been supposed in argument, that if a ship be sold at sea, the purchaser has a right to change her port; and that if he does change her port; a registration de novo is sufficient, and it is unnecessary ❝ to observe the requisitions of the 16th section. But how is it to < be known whether the purchaser will change her port? It is, at the time of the sale, a profound secret. My brothers seem to • think that the purchaser's residence in another port is sufficient. I think not. If indeed he takes her to that port, and begins to trade to and from thence, then that begins to be her port, and he is compellable to register her there, under 7th and 8th Wil. III. • sect. 21, which in that respect I think is in force. The unfathomable intention of the purchaser to tranfer her to another 'port, cannot, I think, be material. I think the purchaser of a ship may carry her to another port, and register her there; but then he must first deliver a copy of the bill of sale. The 21st <section refers to registrations de novo, by virtue of the 26th "Geo. III. whereas that act authorises no registration de novo.

It is said the history of the ship may be traced without a copy of the bill of sale being sent: some of its history may be traced, <but a sale may be suppressed.

• Judgment reversed.'-Hubbard v. Johnstone, 3 Taunt. 177. 224.

129. It has already been mentioned, in referring to the case upon a former occasion, that this judgment was carried by writ of error to the House of Lords, where the case is still depending; and also that the Court of King's Bench had, in the meantime, in another case, confirmed their former judgment *.

* Hayton v. Jackson, 8 East, 511. Upon this matter, there is the following note in Abbot, p. 66. In the 16th section of 34 Geo. 3. c. 68. the legislature appears to

In conclusion, upon the subject of the sale of ships, it may be observed,

130. In the 1st place, that the registry acts do not apply to vessels employed in inland navigation only, and that the bill of sale, in the conveyance of such vessels to a purchaser, does not require to be registered in terms of the statutes, Laroche v. Wakeman, Peake N. P. C. 141.

131. In the 2d place, that the registry acts do not apply to cases where a transfer of the property takes place, or a beneficial interest arises by the operation of law, or the act of God, ex. g. the transfer from a testator to his executors, or the transfer by the commissioners to the assignees in bankruptcy in England, in which cases, a title may be transmitted without any of the forms required by the statutes, Abbot 74.; Bloxham v. Hubbard, 5 East, 422.; Yallop, 15 Ves. 60.; Hay v. Fairbairn, 2 Barn. and Ald. 196.; Selw. Nisi Prius, 1176.

132. In the 3d place, where the contract of the parties embraces something besides the transfer of the ship, and where the forms of the statutes have not been complied with, it has been held that the contract is void only in as far as it was meant to convey the property of the ship, but may be good to other effects. So, where the bill of sale comprised an assignment of the freight, the Lord Chancellor seems to have been of opinion, that the assignment of the freight was not within the provisions of the statutes, Mestaer v. Gillespie, 11 Ves. 629 & 636. So also where a bill of sale for transferring the property in a ship by way of mortgage was void under the statutes, yet as the mortgager by the same deed covenanted to repay the money lent, the instrument was held good to the effect of supporting an action for repayment of the money, Kerrison v. Cole, 8 East, 231.

have contemplated the case of a ship's probable return to her port, because an in• dorsement is required to be made on the certificate within ten days after the ship's ⚫ return. Quere, Whether the most correct mode of proceeding, if the ship be trans⚫ferred to another port, be not to deliver a copy of the bill of sale and indorse⚫ment to the officers at the ship's original port, that the proper entry may be made there, and also to exhibit the bill of sale, and deliver up the certificate to the offcers at the new port, and obtain a new register from them ?!

CHAP. II.

OF THE SUBSTANCE OF THE CONTRACT.

133. In the idea of sale, three particulars are included, viz. the thing sold, the price,-and the consent of parties, all of which are essential to the existence of the contract. The consideration of these subjects will divide this chapter into three sections.

SECTION I.

OF THE THING SOLD.

134. It is essential to the contract that there should be something to which it may attach. If, therefore, A. should sell his house to B., not knowing that it had been burned down before the sale, there is no contract, 4, 15.; 1. 57. ff. de contr. empt. By the Roman law, if the greater part of the house had escaped the flames, the contract was available, the buyer being allowed a deduction from the price. But if the buyer could shew that he would not have entered into the contract at all, if he had known that a part of the house had been destroyed, e. g. that he wanted it for immediate use, and only for a short time, he could not be compelled to abide by the contract *.

1. 57. 1. 58. ff. de contr. empt. Poth. Contr. de Vente, No. 4. The rule now adopted in France seems conformable to equity, Si, au moment de la vente, la chose ' vendue était périe en totalité, la vente serait nulle. Si une partie seulement de la ⚫ chose est périe, il est au choix de l'acquéreur d'abandonner la vente, ou de de'mander la partie conservée, en faisant déterminer le prix par la ventilation.' Code Napol. No. 1601.

135. Although there can be no sale of a thing which has ceased to exist, yet it is enough to support the contract that the thing may exist at a future time, L. 8. pr. 1. 80 § 1. ff. de contr. empt. In this case, if the thing does not come into existence, there is no sale. Thus it is common in France to sell the expected produce of a vineyard, and if there is no crop at all, the bargain falls, Poth. Contr. de Vente, No. 5.

But if the subject of the contract is expressed to be, not the thing expected to exist, but the chance or hope of its existence, or what the Romans called spet emptio, e. g. the draught of a net, or the hope of a succession, then the sale is good, although nothing is produced, L. 8. §.1. ff. de contr. empt. Poth. ut supra, No. 6. Ersk. 3. 3. 3. See also Noodt. Com. ad lib. 18. tit. 1. ff. de contr. empt. tom. ii. p.393; and Domat on Sale, b. 1. t. 2. § 5. No. 4.

136. By the Roman law, there might be a valid sale, not only of that which belongs to the seller, but of that which is truly the property of another-Rem alienam distrahere quem posse nulla dubitatio est, nam emptio est et venditio, sed res emptori auferri potest. It is true, as intimated in this text, that the seller cannot, in such a case, without the consent of the real owner, transfer to the vendee the property of that which is not his own; and if it has been delivered it may be reclaimed by the owner. But it is not the less true, that there is here a complete contract of sale, and that the vendor must either perform the obligations consequent upon it, or be liable in damages. Neither can he protect himself from this claim of damages, by showing that he cannot obtain the consent of the true owner to deliver the thing sold to the vendee; or, if it has been delivered, that he cannot prevail on the true owner to abstain from reclaiming it, and therefore that his obligation must cease, as being to do a thing which is impossible. The impossibility which renders an obligation null, is an absolute impossibility only-when the thing is possible in itself, although not practicable to the party who has bound himself to do it, he must blame himself that he has come under such an obligation, but he cannot on that account shake himself loose from it. Poth. Tr. des Oblig. No. 133-136. Tr. de Contr. de Vente, No. 7. Stair, 103.

* L. 28. ff. de contr. empt.-A différent principle has been adopted upon this point in France under the modern system. Vide Code Nap. No. 1599. et Motifs, &c. loc. cit.