The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1870-04-13

nership, and the advances Of one partner in car
ying on the joint business. are lien on the
partnership stock. Coil Partn. p. log. ia
Story says the assgnees of bankrupt partner
take only his rights in the surplus remaining,
after the payment of joint debts. including liens
held by solvent partners. Stoy's Partn., 1851 I;
Coll. do, I l35; Kent's Comm, 81. The con-
verse may be applied. IT Babcock. the half
owner. were bankrupt, and Spencer 4 Co solvent
the latter would have a clear right to have from
BabcOek's share one half Of their advances. over
all other claims. The mortgages take the mort
gagors' interests. subject to liens Opportunity
for frand would be opened, il part owners can
mortgage their shares and destroy the lien Of CO
owners or co-partners, for advances made for the
common benefit
i9 R. n. STANLEY FOR THE NoRTGAeEEs
The mortgages are valid under the statute
There are no third parties. as contemplated in
Sec 1863. before the Court This is a claim of
Spencer & Co., and not Of their creditors. Both
the owners and the mortgagors had actual notice,
and the mortgages would be good between the
parties, but for Sec. 6s9, providing, -to render
the mortgage valid and efectual, it shall be re-
recorded at the Custom-House,' not at the
Registrars. The statute makes the Custom
House the place to learn the title and ineum-
branees Of Hawaiian vessels. aud not the Regis
trar of Coveyances Mortgages of ships must
be recorded with the Collector Another record
would he useless. State statutes relative to re-
cording chattel mortgages, do not override U. s.
statutes for recording mortgages of ships Fon-
taine VS.. Beers, l9 Ala. 722 Pars Mar Law, |.
81. Recording at the Registrars, alone would
be invalid. See Badlam vs.. Tucker. Pick, 3s9
Wilson vs. Mclean. ST., 492. 1
No authority was shown for the lien claimed,
on the point of indipidual shares, as contra
distinguished from mortgage of the whole yes
sci. The whole vessel was IN fact mortgaged.
and all the shares are represented here Even il
such were not the case, no share-owner could
mortgage anything but his own share, for it can
not for moment be conteBded that this was a
partnership The agreed facts set up or Intimate
none. Part owners are clearly liable, in soAido,
for advances on the vessel by another part owner
Pars. Shipping and Adm, 100 et seq, and
Notes. But they have no lien, as such, but only
when in fact partners. I6., PIP. lO7, 1Os. Mort
gagees precede material men not in actual pos
session. Scio. l Adm. and Eccl Rep. 35S
When the special relation of partnership does
not exist, there is no lien by partners, according
to all the authorities. Lareh Curtis, G. q. R.,
427. s sft rs sr
A ships husband, as sach, has no lien. l Pars.,
Ship. and Adm, p, ll2.
HARTwELL, j.: First: Are mortgages recorded
with the Collector, and not with the Registrar
valid The statute reads thus: "All mort
cages of chattel property shall, in order
to their validity, he recorded in the Office Of the
Registrar Of Couveyances, in default Of which,
no such instrument shall be binding to the detr-
ment of third parties, or conclusive upon their
rights and interests Sec. 1863 Civ. Code 1t
shall be the duty of the Collector-General to
keep record of all transfers, by sale or other
wise, and all mortgages or hypothecatious, of any
Hawaiian registered vessel, or any part thereof;
and no such transfer, mortgage or hypothecation,
shall be valid or effectnal, unless made by written
instrument, nor until such instrument shall have
been deposited with said Collector General for
record" = Sec. $40 ID. Every transfer
of a registered vessel, or sny part thereof. duly
made and recorded as prescribed in the last pre-
ceding section, shall entitle the transferee, being
Hawaiian subject, or otherwise entitled TO the
right Of registry Of such vessel to all the rights
and interests of the original registered owner, in
respect to such vessel and entry Sect. GAL, ID.
Sections GAP and 643, 10, provide for recording
the discharge of mortgages with the Collector
under penalty of fine, and require the owner to
produce before the Collector the certificate Of
registry within three days under penalty of seiz-
ure and condemnation of the vessel
1t was claimed in behalf of the mortgages,
that the question is between the original parties
inasmuch as the assignees merely represent Spen-
Ger & Co., and take the interests Of that firm,
subject to all legal and equitable claims existing
at the date Of the assignment. The authorities
are uniform, that assignees take the property of
bankrupt subject TO the liens legally and bona
tide existing against him. Jamess U. S. Bank
rupt Law, p. 36, et seq. and cases there cited;
Storys Partn., 36i- But these are not proceed
ings 10 bankruptcy, but between the mortgages
and the morteagors assignees, who are certainly
third parties in the meaning OF the statute. By
the decision Of this Court in Ellis vs. White, at
the Jan. Term, 1870, actual notice Of chatteI
mortgage can not supply the want Ct registry
according to law and the validity Of this registry
at the Cus+om-H House must, therefore, be passed
upon in this case. Counsel cited the remarks Of
Prot Parsons. in his Treatise on Maritime Law,
upon the suficiency Of registry in the Custom
House. under an Act of Congress, and not under
the State laws but the question of the consti-
tutionality Of our registry laws is not, 10 this
case and tits whether Sect. $40 is an exception
to Sec. 1868, or more correctly speaking. part
thereof, or is something additional and distinct,
requiring second registry for additional and dis
tinct purposes. We think this case imperatiTely
demands that construction which is contemplated
in Sections IL. II and l3 Of the Civil Code, con-
cerning laws in pGri 1l1teria, the reason and
r. Il.