| U.S. Circuit Court for the District of Massachusetts | Oct 15, 1817
(after summing up the facts). There are some questions of law in this cause, upon which it is my duty to give an explicit instruction. The first is, whether the legal title to a ship can, since the registry acts of the United States, be transferred, without complying with the forms prescribed in those acts. Acts Dec. 31, 1792, c. 1 [1 Stat. 287], and Feb. 18, 1793, c. 8 [Id. 305]. Upon this question the right of the defendant to set oft or deduct his own demands for expenses and disbursements from the proceeds in his hands, materially depends. And I am of opinion, that the registry acts have not, in any degree, changed the common law as to the manner of transferring this species of property. To be sure, a bill of sale is necessary to pass the tiñe 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 the proper muniment of the tiñe of the ship. The Sisters, 5 C. Bob. Adm. 155. To entitle ships to be registered, and to be deemed ships of the United States, with the privileges and exemptions of such ships, it is necessary, that the transfer should be made according to the form prescribed in the registry acts; that is to say, that it should be by some instrument in writing, which shall recite at length the certificate of registry; but the acts do not declare any other transfer void and illegal; but simply deny to ships transferred in any other manner the privileges of ships of the United States, and deem them alien or foreign ships. In this respect our acts differ from the English registry acts (26 Geo. III. c. 60, § 17; 34 Geo. III. c. 68, § 14; Abb. Shipp, pt. 1, c. 2, § 16), which declare, that all transfers, or agreements for transfers, made without reciting the certificate of registry at length in the bill or instrument of sale or agreement for transfer, shall be utterly void to all intents and purposes whatsoever.
In the next place it is contended, that the defendant cannot set up, in this case, any title to one moiety of the ship in Mr. Silas Penniman, and charge him with a moiety of the expenses, disbursements and purchase-money, because the defendant had the ship registered in his own name-as sole owmer, and made oath to such sole ownership before the collector, and he is, there^ fore, estopped to set up a fraud upon the registry act, to sustain his claim. But it is to be considered, that the title set up in Mr. Silas Penniman is a merely equitable title; and the sole legal tiñe was, by the agreement of the parties, to remain in the defendant. The oath required by the registry act of 1792, c. 1, § 4, to be taken by the owner, respects only the legal ownership of the property; and does not require a disclosure of any equitable interests vested in the citizens of the United States; but only a denial, that any subject or citizen of any foreign prince or state, is directly or indirectly interested by way of trust, confidence, or otherwise in the ship, or in the profits or issues thereof. It is sufficient, that the legal interest is truly stated; and if there be any equitable interest or trust in favor of any other citizen of the United States, no fraud is committed upon the law. Suppose a mortgage made of a registered ship, may not the mortgagee truly declare himself the legal owner, notwithstanding an equitable right of redemption in the mortgagor? See, as to equitable interests under the British registry act, Addis v. Baker, 1 Anstr. 222; Speldt v. Lechmere, 13 Ves. 588; Ex parte Houghton, 17 Ves. 252; Camden v. Anderson, 5 Term. R. 709.
There is another point in this case, which has been urged by the defendant’s counsel'viz. that the instrument sued on is not negotiable, and that, therefore, the plaintiff is not entitled to recover, even if the set-off or deductions claimed by the defendant cannot be sustained. It is certainly true, that the instrument is not negotiable, and therefore it cannot be declared on as such. But by his acceptance the defendant undertook to hold the proceeds, after deducting his own demands, for the account of such person as should, by the endorsement or order of Mr. Amos Pen-niman on the draft, entitie himself to the proceeds. The plaintiff is the regular endorsee or appointee of Mr. Amos Penniman; and after notice of this fact, the defendant must be considered as holding the money for his use; and under such circumstances the law will imply a promise to pay the same over to him. The money counts are therefore fully sustained, if the set-off does not absorb the whole proceeds. The cases of Fenner v. Meares, 2 W. Bl. 1269, and Innes v. Dunlop, 8 Term R. 595, are strongly in point.