Mercer v. Sayre and Toler. It was then proved, that goods had been consigned by the plaintiff to the defendants, for sale; that the defendants had accordingly sold them, and had received in payment the note of one Burdell, payable the first of January, 1807. The defendants contended, that this evidence could not be applied to any of the counts but the count for money had and received; and, to support that count, the plaintiff must further show that the defendants had received the amount of the note. YATES, J. To support the count for money had and received, it is not sufficient to show that the defendants have received a promissory note, it must be proved that money has actually come to their hands. Nitchie and D. B. Ogden, for plaintiff. Baldwin, for defendants.(2) however, is sufficient to take a case out of the statute of limitations. Smith v. Ludlow et al., 6 Johns. 267. This case, however, (Smith v. Ludlow,) has, since the writing of this note, been expressly overruled in the court of appeals. Van Keuren v. Parmelee, 2 Comst. 531. This was the necessary result of the great change which has taken place in this state in the course of decisions upon the statute of limitations, where it is now the settled law, that a mere acknowledgment that the debt is unpaid is not sufficient, as heretofore, to take a case out of the statute, but that there must be either an express promise or an acknowledgment of a present indebtedness, a subsisting liability, and a willingness to pay. Allen v. Webster, 15 Wend. 284; Stafford v. Richardson, 15 Wend. 302; Hancock v. Bliss, 7 Wend. 267; Purdy v. Austin, 3 Wend. 187, &c. Thus, in effect, there must be a new contract, though founded on the original consideration; and, as it is clear that the power to make such contract does not exist after the dissolution, the result from such premises is inevitable. See also, Bogert v. Vermilye, 10 Barb. 32; Story on Part. 467. (2) On a motion for a new trial, this point was confirmed by the court, ut Mercer v. Sayre and Toler. semb. 7 Johns. 306; vide ante, Haskins v. Dunham, and the note on that case. The case was sent back for a new trial, on a point confirming this ruling of the judge. Pending the plaintiff's summing up to the jury, the defendant discovered, from the inspection of papers in the possession of one of plaintiff's witnesses, that the money in question had not been, in fact, received by Sayre & Toler, until December, 1807, after the commencement of this suit. He then asked permission of the judge to introduce this fact into the cause, but the judge refused, concluding that he had no discretion. The court, however, ruled that he had such discretion, and that the testimony was material, as it went to destroy the presumption that the money was actually received by the defendant. Vide etiam, Haskins v. Dunham, ante, and the note to that case. CASES ARGUED AND DETERMINED AT NISI PRIUS. SITTINGS AFTER FEBRUARY TERM, 1810, AT NEW YORK. CORAM MR. JUSTICE SPENCER. WENDOVER and HINTON against HOGEBOOM et al. Delivery of a vessel conveys the title, the sale differing in nowise from the sale of other chattel. A bill of sale is not essential as far as title is concerned. ASSUMPSIT, for work and labor done and performed, and materials furnished, in and about the making of a suit of sails for the sloop Convention, owned by the defend ants. Plea, the general issue. It appeared in evidence, that the defendants were the owners of the sloop Convention, in 1804. That, in Febru ary, 1805, one Vosburgh purchased one half of said vessel from one of the defendants, and, in June, 1806, the remaining half from the other defendant. That he was regularly Wendover v. Hogeboom et al. put in possession of the said vessel, immediately after the purchases, but no bills of sale were executed; the parties having agreed that the vendors should not be bound to give a bill of sale until payment was made by the vendee, which payment was to be made by instalments. The sloop remained enrolled in the name of the defendants, until the Autumn of 1807, when a bill of sale was duly executed by the defendants to Vosburgh. The sails were furnished to the vessel on the 6th December, 1806, on Vosburgh's order. The plaintiff's counsel contended that the ownership of the sloop must be considered as being in the defendants, until the execution of the bill of sale; and, that the enrolment was conclusive evidence of the fact of ownership, he cited 3 Dallas, 491. SPENCER, J. The sale of a vessel does not differ from the sale of any other chattel. The delivery of the article conveys a sufficient title. The bill of sale is of no importance, after delivery, as to title. The title to this sloop was out of the defendants, upon the delivery to Vosburgh, and they are therefore not liable, as owners, for the sails furnished. The case cited from Dallas is inapplicable. There, the parties expressly agreed that the ownership of the vessel should be considered as remaining in the vendor, that she might retain her American character, the vendee being an alien. Irving, for plaintiff. Emmet, for defendants. Verdict for the defendants.(1) (1) On a motion to set aside this verdict, the court decided, that the property in the vessel was not in the defendants when the plaintiff sold the sails Wendover v. Hogeboom et al. From this deci to Vosburgh, that they had then ceased to be the owners. sion, follows, that ships and vessels are transferable by our law, in the same manner as other chattels; that they will pass by delivery, without the formality of a bill of sale. In the case of coasting or licensed vessels, as the Convention seems to have been, a bill of sale is entirely unnecessary. But, in the case of registered vessels, there must be a bill of sale, reciting the certificate of registry, not for the purpose of transferring the title, which is fully transferred by delivery, as in the case of coasting vessels, but for the purpose of securing to the vessel the privileges of an American ship, under the statute, which are lost, unless such bill of sale accompanies the transfer. Laws U. S., Vol. 2, p. 321, c. 146, sec. 14. In England, by various statutory provisions, a bill of sale, reciting the register of the ship or vessel, is absolutely necessary, and the transfer is void unless made by such bill of sale. 26 Geo. 3, c 60, sec. 17; 34 Geo. 3, c. 68, sec. 18. It is also necessary there, in order to change the ownership, that there should be a new certificate of registry. 26 Geo. 3, c. 60, sec. 16. This is also necessary by our law; not, however, for the purpose of transferring the title, but for the purpose of securing, to the ship transferred, her American privileges, as in the case of the bill of sale. This radical difference in the laws of the two countries has produced a difference in decisions on the same subject matter, in their respective tribunals. Thus, in the case of Young v. Brand et al., (8 East, 10,) a bill of sale of a vessel had been duly executed by the defendants to a third person, who immediately took possession of the vessel, and ordered repairs, which were done by the plaintiff, who then brought an ac tion against the defendants for those repairs, the certificate of registry not having been changed, and the defendants, therefore remaining as owners on the face of it. The court there held that the defendants remained the legal owners. This, for the reason above mentioned, would not have been the decision of our courts. In this case, however, the court also decided, that although the ownership was in the defendants, still, as the repairs had been ordered by a stranger, they were not liable. At the trial of the principal case, at Nisi Prius, it was contended by the counsel for the plaintiff, that the enrolment was conclusive evidence of the fact of ownership, and he relied on the case of Murgatroyd v. Crawford, 3 Dall. 491. In that case, Shippen, J., held that the register (which is the same to a registered vessel, that an enrolment is to a coasting vessel,) was prima facie, but not conclusive, evidence of ownership. This case, however, was afterwards overruled in the case of Duncannon v. McLure, 4 Dall. 314; Murgatroyd v. McLure, 4 Dall. 342. On this subject, the true rule is, that the register or enrolment can never be evidence for the owners, and can only charge persons with the ownership prima facie, by showing, by parol or otherwise, that it was their |