Obrazy na stronie


one part-owner to another. And where such a transfer was made Cases and dewhilst a ship was at sea, and the provisions were not complied the transfer of with in the limited time after her return, the assignees of the party ships, under making it, who had become a bankrupt, were held entitled in a 26 Geo.3.c.60. Court of equity to have an account of the voyage from the other and 34 Geo, 3. part-owner. (a)

XI. The first case decided on the 26 Geo. 3. was Roileston v. Hib- Rolleston v. bert, (b) in which it was determined that an absolute bill of sale of a ship then at sea was void by 26 Geo. 3. c. 60. s. 17., unless the certificate of the registry were recited therein : therefore, although the vendee gave at the same time an undertaking to restore the ship on a future day on payment of a certain sum advanced by him on the credit of the security of the ship; and although the vendee had also the grand bill of sale, and had taken possession of the ship immediately on her arrival ; it was, notwithstanding, held that he could not retain the ship, as having a lien on her, against the assignees of the vendor who became à bankrupt after the transfer. Previous to this statute, the delivery of the grand bill of sale of a ship at sea had been repeatedly held to be equivalent to the delivery of the ship itself, without any other superadded forms. (c) It was in the case of Rolleston v. Hibbert that Lord Kenyon said, that it was not necessary that the property in a ship should pass by a written instrument: but that if the parties chose to convey by a written instrument, they should not be permitted afterwards to refer to any other agreement. This opinion, so expressed, was the occasion of the clause in the 34 Geo. 3. c. 68. s. 14., that no transfer of property in any vessel should be valid unless made agreeably to the 26 Geo. 3. c. 60.; and by bill of sale, or instrument in writing. The 4 Geo. 4. c. 41, s. 29. requires the same formalities.

XII. But notwithstanding the seventeenth section of the 26 Geo. Clerical mis3.c. 60. enacts that a bill of sale of a ship shall be absolutely void, takes will not unless the certificate of the registry be truly and accurately in- sale. serted therein, it has been determined, upon manifest principles of equity, that a mere clerical mistake shall not vitiate the bill of sale. (d) But the indorsements on the certificate of registry are not required to be recited in the deed of assignment of a ship; for the Legislature looks principally to the public interests in these acts, and not, in the first instance, to the purchaser. Now, as the

(a) Speldt v. Lechmere, 13 Vez. Jun. 588. and Abb. 55.

(6) 3 T. R. 406.

(c) Atkinson v. Malling, 2 T. R. 462.

(d) Rolleston v. Smith, 4 T. R. 161.

and 34 Geo. 3.

Cases and de- certificate of registry must be registered at the custom house, with the transfer of the indorsements thereon, the owner cannot fail to be known; and property in ships, under

as the purchaser must have the certificate of registry recited in the 26 Geo. 3. c.60. bill of sale, he will be directed thereby to resort to the custom c. 68.

house for any information which he may want. As the public, therefore, are sufficiently protected without any recital of the indorsements, it has been holden no good objection to a bill of sale of a ship that it did not recite them. It will, however, says a learned author, be always prudent, though it be not essentially necessary, to recite in a gecond, and every subsequent bill of sale

, the indorsement made in pursuance of every previous transfer. (a) So, where the parties by mistake misrecited in a bill of sale the certificate of registry, by stating Guernsey as the port where the certificate was granted, instead of Weymouth, (which mistake was rectified when discovered, by consent of all parties, and the deed delivered de novo,) the Court of King's Bench held that no new stamp was necessary upon such re-execution; the deed taking no effect from its first delivery, and the defect arising not from inten

tion but from mistake, and the alteration merely making the conThe bill of sale tract what it was originally intended to have been. (b) But where is a nnllity

A. and B. were joint owners of a ship, and A. conveyed his moiety tificate of re- to B., but in the bill of sale the certificate of registry was not gistry is not properly re

accurately and truly recited, the word oath being used instead of cited therein. affirmatian ; sworn, instead of affirmed; the allegation that

another part-owner was not resident within twenty miles being omitted, and the name of the master changed : under these circumstances, although B. took possession, and afterwards mortgaged the whole ship to A., (who did not take possession) and B. afterwards ordered C. to repair the ship, and then conveyed one half of the ship to A. and the other to D.; it was held that the first bill of sale was an absolute nullity, and that as the certificate

of registry was not truly and accurately recited therein, (c) there Law amended was no legal transfer of the ship. The new act, 4 Geo. 4. c.

41. by 4 G. 4.

s. 29. has in this respect amended the law; though it might probably not have extended to the case under review.-It provides that no bill of sale shall be avoided by reason of any error in the recital, or by the recital of any former certificate of registry instead of the existing certificate, provided there be satisfactory proof of the identity of the ship.

when the cer

c. 41. 8. 29.

(a) Capadose v. Codnor, 1 B. & P. 483, and Abbott, 58.

(6) Cole v. Parkin, 12 East's Rep.


(c) Westerdell v. Dale, 7 T. R. 306.

XIII. It will be necessary in this place to state very concisely some cases and deof the decisions under the old registry acts. The 34 Geo. 3. c. 68. the transfer of s. 16. requires that if a vessel be absent from the port to which she property in

ships, under belongs when an alteration takes place in the property, the sale must 26 Geo. 3. c H. be made as directed by the 26 Geo. 3. c. 60.; and within ten days after such ship shall return to the port to which she belongs, an indorsement must be made and signed by the owner, &c.; and a copy of such indorsement be delivered to the officer of the custom house authorized to make registries and grant certificates, otherwise the bill of sale, &c. is to be utterly void. The intent of this clause was to prevent an interest passing in ships from one person to another, until a record was made of the transaction at the custom house. It was, therefore, very early decided that the conditions of the act must be strictly complied with ; and that where a bill of sale had been executed, and the requisites of the registry acts not completed until the rights of third persons intervened; no relation would hold good so as to make the conveyance effectual from any antecedent time. For if the act, it was said, were to be considered as giving an indefinite time for the compliance with its requisites, it would enable a transfer of property to be made to foreigners, who might remain concealed owners, and thereby defeat the material provisions of the statute. This was decided in Moss v. Charnock. (a) The facts of that case were shortly Case of Moss these : Kirkpatrick being indebted to the defendant in more than 5. Charnock. the value of his share of the ship, in August, 1800, made a bill of sale to the defendant, and sent it to him: but the defendant declined accepting it till the 15th of November, 1800; and on the 19th of that month Kirkpatrick became a bankrupt. On the 15th of December, and not before, the requisites of the 34 Geo. 3. c. 68. s. 16., in respect to the transfer of ships not in port, were complied with; and within ten days after the return of the ship to pórt an indorsement was regularly made on the certificate of the registry, and the other requisites of the act complied with. On the part of the plaintiffs it was contended that the requisites of the 34 Geo. 3. not having been satisfied before the bankruptcy, the sale was not complete at that time; in answer to which the defendant's counsel insisted, that as the requisites of the statute were complied with within a reasonable time after the execution of the bill of sale, that would by relation make the sale complete from the 15th of November, a period before the bankruptcy. The Court of King's Bench decided that the plaintiffs were entitled to recover, upon the ground

and 34 Geo. 3.

(a) 2 East. 400.

c. 68.

Cases and de- that Kirkpatrick having become a bankrupt between the time of cisions upon the transfer of executing the bill of sale to the defendant, and the time of the deproperty in

fendant's complying with the requisites of the registry acts, the ships, under 26 Geo.3. c.60. property did not pass to him, notwithstanding such requisites were and 34 Geo. 3.

completed after the act of bankruptcy. Upon this case it is suggested, in a very learned Treatise, that Mr. Justice Lawrence, who delivered the judgment of the Court of King's Bench, must be understood to speak, (with reference to the facts of the case before the court,) of such requisites only as may, according to the circumstances of the transaction, be immediately complied with; and did not mean to intimate, that if Charnock had delivered a copy of his bill of sale to the officers before the bankruptcy of Kirkpatrick, so as to have enabled them to make the proper indorsement on the affidavit, he would not thereby have acquired an inchoate title, which might have been perfected by the indorsement made on the certificate within ten days after the ship's return. (a)

XIV. The case of Moss v. Charnock has been much questioned. In Mestaer v. Gillespie, (b) the Lord Chancellor observed that the generality of the proposition stated by a very able judge, in Moss v. Charnock, excited a doubt in his mind, whether what was there laid down must not be qualified.—“The proposition (he says) as stated in that judgment, goes to this extent; that if a man sold a ship at sea, the vendee having done every thing required by the act which could be done ; but afterwards, before the arrival of the ship in port, an act of bankruptcy was committed by the vendor;

the assignee under a..commission of bankruptcy, and not the Authority of vendee, would take the ship.” Mr. Baron Wood in another case nock disputed. expressly (c) dissented from the doctrine laid down in Moss v.

Charnock; and, speaking of the provision in 26 Geo. 3. c. 66. s. 16. said, “No time is here limited within which the copy

of the indorsement shall be delivered; and, therefore, I take it the inference of the law is, that it shall be done within a reasonable time; and until that time is elapsed, I hold the bill of sale remains good, and the property legally transferred to the vendee.” And, again, “ It has been contended, that no property passes from the vendor to the vendee till all these things have been done; and the case of Moss v. Charnock has been cited to prove that position ; and it has been said, that if an act of bankruptcy intervenes before the delivery, although the delivery be within a reasonable time

(c) Hubbard v. Johnstone, 3 Taunt.

(a) Abbott 60.
(6) 11 Vesey, jun. 637.


and 34 Geo. 3.

in Palmer v.

afterwards, the vendee loses the ship. With great deference to Cases and dethat authority, I cannot agree to it; I think that the property the transfer of passes instantly by the bill of sale, and that the subsequent acts to property.in be done are not necessary to transfer the property, but that the 26 Geo. 3.c.60. grant is defeasible by subsequent omissions, in cases where it is so c. 68. expressly provided, but not otherwise.” In a subsequent case, Principle of Palmer v. Moxon, (a) Lord Ellenborough, in commenting on the Moss v. CharCase of Moss v. Charnock, says, “I confess that I have always nock limited thought that the things required to be done by the act. were in Moxon, 2 M. their nature conditions subsequent. What is required to be done & S. 43. within ten days must undoubtedly be done within ten days: but where no time is limited, the act must be done within a reasonable

And, Bayley, J. said_“I think the case of Moss v. Charnock was rightly decided under the circumstances; for there the bill of sale was executed on the 23d of August, and the requisites of the statute were not complied with until the 5th of December; so that there was gross delay. The true construction of these acts seems to be this, that the bill of sale shall be holden to transfer the property from the time of its execution, but shall be liable to become void, ex post facto; that is, if the party does not comply with the requisitions of the statute within a reasonable time; upon the failure of which the statute makes the sale null and void.

XV. The case of Palmer v. Moxon was as follows :—The plaintiffs Palmer v. bad recovered a judgment against one Moody for 2371.; and a writ Moxon. was delivered to the defendant, the sheriff, on the 11th of June, 1812, at a quarter past twelve o'clock in the afternoon. The sherif's officer, about half-past three o'clock in the same afternoon, took possession of one-fourth part of the brig Thirsk, then lying in the port of Hull, being the port to which she belonged, and in which she was registered. It appeared that on the 10th of June, the day previous to the levy, Moody, being owner of one-fourth, Duckles of another fourth, and Matthias Moody and Thomas Duckles of another fourth part, by a bill of sale of that day, in consideration of the sum of 9101., sold to A., B., and C., &c., three full and undivided fourth parts of the brig. A copy of the certificate of the registry was set forth in the bill of sale, which was executed on the day of its date by J. and M. Moody and T. Duckles, about five o'clock in the afternoon; and at the same time a memorandum of the transfer by all the four was indorsed on the certificate of the registry, and was signed by the three; but neither the bill of sale nor the memorandum of transfer was

(a) % M. & S. 43.

« PoprzedniaDalej »