Mortgages, 9, 10; 2 Black. Com. 158; Littleton, 332; 4 Kent Com. (12th ed.) pp. 162-165; 1 Washburne Real Property, 562, 567, 568, 569, 570; Lowell vs. Shaw, 15 Maine, 242; Hotchkiss vs. Hunt, 49 Maine, 213; Ely vs. McGuire, 2 Ohio, 372 (ed. of 1833); Wright vs. Ross, 36 Cal. 414; Mowry vs. Wood, 12 Wis. 413; Harding rs. Coburn, 12 Met. 333; Esson vs. Tarbell, 9 Cushing, 407; Veazie vs. Somerby, 5 Allen, 281; Woodruff vs. Halsley, 8 Pick. 333; Prat vs. Harlow, 16 Gray, 379; Gellston rs. Hoyt, 13 Johns. (N. Y.) 561; Philips vs. Ledley, 1 Wash., p. 226.)

"f. Or the complainants were owners of the vessel, by a parol sale and delivery by Currie. (The Amelia, 6 Wall. 18; Wardover vs. Hogeboom, 7 Johnson, 308; Sharp vs. U. S. Ins. Co. 14 Johnson, 201; Lamb vs. Durant, 12 Mass. 34.)

"Currie was not the owner. A bill of sale does not necessarily change the ownership of property. (Horn vs. Ketaltas, 46 N. Y., 605; Ross rs. Norvell, 1 Wash. (Va.) 14; Brogden vs. Walker, 2 Hen. & J. (Md.) 285; Reed vs. Jewett, 5 Me. 96; Caswell vs. Keith, 12 Gray, 351; Fuller vs. Parrish, 3 Mich. 211; Carter vs. Burris, 10 Smede & Mar. (Miss.) 527; Despart vs. Walbridge, 15 N. Y. 374; Tyler vs. Strang, 21 Barb. 198; Picard vs. McCormick, 11 Mich. 68; Fowler vs. Stoneum, 11 Tex. 478; Howard vs. Odell, 1 Allen, 85; Blanchard vs. Fearing, 4 Allen, 118; Clarke vs. Washington Ins. Co. 100 Mass. 309; Ward vs. Beck, 13 Com. Bench, N. S. p. 688; Collins vs. Blanteen, 2 Wilson (K. B.) 347.)

"The claimants were entitled to the protection of the United States in the premises. (Vattel, book 2, chap. c.; President's Message, Dec. 6, 1875; U. S. Statutes at Large, vol. 14, 212; Abbott on Shipping, p. 58; 6 Opinions of the AttorneysGeneral, pp. 648, 649; The Margaret, 9 Wheaton, 421; Smith's Mercantile Law, pp. 143-144; Parson's Maritime Law, vol. 1, p. 39; Bixby vs. Franklin Insurance Co. 8 Pick. 86; Ocean Ins. Co. vs. Pollocks, 13 Peters, 157; Coolidge vs. Ingles, 13 Mass. 26; 3 Kent Com. 139, 146, and 149; Long vs. Duff, 2 Bos. & Pull. 209; Hatch vs. Smith and Trustee, 5 Mass. 42; Consular Regulations of the U. S. Art. XVII.)

"The complainants, at all times during the late rebellion, bore true allegiance to the United States. Their act in transferring the vessel is not evidence to the contrary. (Vattel, book 3, chap. 10, sec. 178; The Bennet, Dodson's Reports, p. 179; English Statute of 1854.)

"This claim has been examined by the Department of State, the tribunal of arbitration, and the British board of trade, and not criticised. It was included in all presentations and estimates, and undoubtedly included in the award of the tribunal.

"Mr. J. A. J. Creswell, for the respondent

"Cited statutory provisions in relation to vessels of the United States (Customs Regulations, Treasury Department, 1874, p. 1; Rev. Stats. § 4132, § 4311, § 4312, § 4136, § 4180,

§ 4165, § 4177, § 4178, § 4189, § 4190, § 4308; 6 Opinions Attorneys-General, p. 652; Consular Regulations, secs. 219, 220, 221, 225; Rev. Stats., § 4172) and contended

"1. That the bill of sale executed and delivered by the owners, through their agent, the master, to Currie did in law convey a good and valid title to Currie. The fact that no purchase money was paid would not impair the validity of the transfer. (14 Johns. 210; 20 id. 338; 3 Har. & McHen. 433; 4 Serg. & R. 564; 17 Mass. 249; 4 N. H. 397; The Ariel, Moore's P. C. Reports, Vol. XI. p. 131; 1 J. J. Marsh, 388; 16 Wend. 460; 9 Cowen, 266; 1 Bland Ch. 249; 2 Ham. 182. Disapproving, 1 B. & Cres. 704; 2 Taunt. 154; 5 B. & Ald. 606; 1 Greenl. 1; 2 McLean, 543.)

"The pretext that the transfer was merely colorable will not avail. (16 sec. act Dec. 31, 1792; The Margaret, 9 Wheat. 421.)

"The owners of vessel and cargo are now precluded from denying that she was a British ship. (Phil. Int. Law, 2 ed. 1873, Vol. III. pp. 734-5; Halleck's Int. Law, chap. 20, sec. 17, p. 486; The Fortuna, 1st Dods. Adm. R. 87; The Success, ibid, 131; The William Bagaley, 5 Wall. 410.)

"The complainants therefore have no standing in this court, for if they claim as owners they must claim as owners of a British ship. There is no justification for a demand by the complainants as mortgagees in possession or as owners by sale and delivery without paper title. (The Virginius, 14 Opinions Attys. Gen. 340.)

"The complainants voluntarily expatriated the vessel and placed her beyond the protection of the United States.

"Rayner, J., delivered the opinion of the court:

"From the evidence in these cases it appears that the bark the Texan Star was built in Boston in 1858, and measured 798 tons. In 1863 she was successfully engaged in the East India trade, her managing owners being Samuel Stevens & Co., of Boston, and her commander or master being Samuel B. Pike, who owned one-sixth of the vessel. On July 3, 1863, Stevens & Co. wrote to Captain Pike warning him that one of the Confederate cruisers was on her way to the East Indies, and saying to him:

"We advise that you place your ship under the British flag immediately (or any other flag). You have probably been advised by Atkinson, Tilton & Co. of the process, which is as follows: You are to sell her and receive notes in payment, and as soon as the transfer is made you to take a mortgage and give the notes in payment; then receive an irrevocable power of attorney in your favor to sell or to manage the ship as you please, receive all moneys, etc., which will place you in the same position as at present. If you find it difficult to do this, and a good price can be obtained, you had better sell. In regard to ship's employment in case you do not sell we can only advise as heretofore, that you act according to the best of your judgment.'

籽料

"On the 11th of November 1863 Captain Pike arrived at Maulmain, where he received the foregoing letter from Stevens

& Co. At Maulmain Captain Pike took on a cargo of rice for Singapore. On the 13th of November he wrote to Stevens & Co. doubtfully about his change of flag, saying he would not like to make such arrangement unless he was satisfied with the parties to whom the transfer would be made.' On December 9 Captain Pike again wrote to the same parties, saying, 'Since I last wrote you matters in this vicinity have undergone a great change.' He went on to state that, after completing his loading and being about ready to clear from the custom-house, the mail steamer from Singapore had arrived, bringing news of the destruction of American shipping in the Straits of Sunda, and that in consequence of this he deemed it necessary, for the interest of all concerned, to change the flag in accordance with the advice he had received.

"Accordingly it was arranged that Captain Pike should make a temporary transfer of the ship to Mark R. Currie, of the house of M. R. Currie & Co., and that her name should be changed to the Martaban; that Currie should give in return a mortgage to the nominal vendors for the nominal consideration of 80,000 rupees, with the understanding that Captain Pike should, as master, continue to exercise the same absolute control and management of said vessel as before.

"It was further agreed that Currie was to receive one per cent for his services in the matter. All this was accordingly done, and the paper-writings passed. The cargo was already on board, 12,556 bags of rice of 164 pounds each, with freight agreed upon at one rupee four annas per bag. Captain Pike paid the cost of the proceedings. On the 12th December 1863 Captain Pike sailed from Maulmain, and on the 24th of the same month the Martaban, as then called, was captured and, with her cargo, burnt by the Alabama, when within only a few hours' sail of Singapore.

"These claims of the parties complainant against the United States for the value of the said ship, freight, and master's private property are preferred upon the grounds, first, that there was in fact no sale at all, and that the right of property in the ship by the owners, Stevens and others, was never divested; secondly, that even if this be not so, and the sale must be re garded as valid and binding, yet, as mortgagees retaining possession, they must be regarded as virtual owners of the property, and are entitled to remuneration before this court.

"To the allowance of these claims the counsel for the United States objects. He takes the position that the claimants are excluded under the operation of the restriction imposed on this court by the twelfth section of the act of Congress establishing this court, as follows: No claim shall be admissible or allowed by this court arising in favor of any person not entitled at the time of his loss to the protection of the United States in the premises.' That the complainants having sold their vessel to a British subject, and put her under a British flag, the

said vessel was British property; and therefore not being entitled to the protection of the United States in the premises, they can have no show before this court.

"The act of Congress under which this court derives its jurisdiction provides that all claims are admissible before it directly resulting from damages caused by the so-called insurgent cruisers Alabama, etc., and claims admissible must be those arising in favor of persons entitled at the time of loss to the protection of the United States in the premises.'

"It is proven that the claimants are American citizens, whose status as to loyalty, noncompensation from other quarters, etc., brings them within the category of rightful claimants, so far as that status is concerned. It is proven that they suffered loss and damage directly resulting from the acts of the Confederate cruiser, either as owners of the ship or as mortgagees in possession. Is there any other consideration in the premises by which they have forfeited this protection? All the facts, the circumstances, and the evidence go to prove that the conveyance of the ship to Currie was never intended or regarded by any of the parties to have any validity. It was designed and carried out in collusion and pretense. It was not done in the way of trade or of commercial enterprise. It was not to secure gain, but to avoid loss. There does not appear to have been any attempt at secrecy or deception, or misrepresentation, except as against the common public enemy.

"Stevens & Co. advised Captain Pike to place the ship under the flag, as a precaution against threatened danger; and instructed him as to the manner of proceeding, empowering him to reserve to himself in the mortgage full control and management of the ship, according to the best of his judg ment. The evidence shows that about that time there was a sort of panic with the American shipping in the East Indian seas. Captain Pike seems to have been reluctant to put the ship under another flag, and so far from attempting anything clandestinely, he first consulted Mr. Brooke, the American consul at Maulmain, and applied to him to aid him in the matter. M. R. Currie & Co. wrote to Atkinson, Tilton & Co.: "We have had the vessel transferred to our Mr. Currie, in order that he (Captain Pike) may sail in safety from Southern privateers.'

"E. J. Stanley, an assistant in the firm of Currie & Co., testified that Captain Pike was brought to the office of Currie & Co., and introduced to them by Brooke, the American consul, to

"Consider the question of danger to the vessel and her cargo, in consequence of the presence of the Confederate cruiser Alabama, and to make arrangements to avoid the same.'

"Captain Pike wrote to Stevens & Co. that he deemed it necessary, for the interest of all concerned, to change the flag.' Currie did not pay a rupee for the ship, but received a commission of one per cent for his services, and even executed

a mortgage for ten thousand rupees more than the nominal consideration of the collusive sale. Currie never claimed any ownership in the vessel, but admitted the pretended sale was in order to be safe against danger from the Alabama. Captain Pike, in the terms of the mortgage, retained the absolute power of attorney to manage and control the vessel as he pleased. Captain Semmes, in his journal, speaking of the capture of the Texan Star, says he asked Captain Pike if he did not know that the transfer was intended merely as a cover to prevent capture, and that Captain Pike replied, Yes, I do know it.' Semmes burned the ship, because he was shrewd enough to discover that the pretended transfer of the ship was a sham to escape him. He burnt her as an American ship. Currie has never interposed any claim to the ship. Great Britain did not, through her representatives at Geneva, take the position that she was an English ship, or attempt to evade her responsibility for the destruction by the Alabama.

:

"Looking at the matter, therefore, with all its circumstances and surroundings, the pretended transfer from Pike to Currie must be regarded as no sale at all, but as utterly null and void-intended as such by all the parties at the time, and so regarded since-and that when the vessel was destroyed, she was the property of Stevens and others. There are, however, other questions that present themselves, touching the right of the parties to remuneration by this court, even admitting the conveyance of the ship to have been null and void. Although the transfer was collusive and designed to work no change in the ownership of the property, still the question arises, Are the applicants estopped from pleading collusion and deception? Although such sale was void, as against the rights and interests of third parties, was it binding and operative on the parties themselves? Can they be allowed to ignore and nullify their own deliberate acts with a view to their own benefit?

"The first point to be considered here is, What was the nature of the act done (seeking the protection of a foreign flag)--was it wrongful in its character? Did it contravene public or private rights? It is a well-settled principle of law that contracts involving wrong are not to be favored. Chancellor Kent, in his Commentaries (vol. 2, page 366), says, in treating of contracts:

"The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law or sound policy, or good morals. Ex turpi contractu, actio non oritur. The reports, in every period of the English jurisprudence, contain striking illustrations of the general rule that contracts are illegal when founded on a consideration contra bonos mores, or one against the principles of sound policy, or founded in fraud, or in contravention of the positive provisions of some statute law.'

"The consideration' here mentioned by Chancellor Kent, as is evident from the context, is to be understood in its largest and most comprehensive sense. It means something more than the simple quid pro quo; something more than the mere reward or expected benefit moving the parties to the contract.