« PoprzedniaDalej »
the Lord Chan. Moxon; (a) and, in conformity with that decision, and the pre322.
vious case of Hubbard v. Johnstone, (b) decided, that a bill of sale
passed the absolute property of a ship at sea, subject only to be Dixon v. Ewart. divested in case the indorsement on the certificate of registry were
not made within ten days after the ship's return to port. The Lord Chancellor's judgment in this case cannot, with any propriety, be omitted. The facts of the case are not important: but, in adverting to the arguments at the bar, his Lordship says, “I am glad to have been referred to the case of Palmer v. Moxon ; for I thought something had been said on this subject in the courts of law, since Moss v. Charnock, upon which I forinerly observed in Mestaer v. Gillespie. (c) It strikes me very forcibly that the principle must be similar to that of the cases under the annuity act, (d) by which it has been decided that the grant of the annuity passes the ownership instantly, subject to be divested in case of noncompliance with the provisions of the act by inrolment within the twenty days thereby limited. And this appears to be Lord Ellenborough's opinion in Palmer v. Moxon; for I cannot think that the decision of the Court of King's Bench in that case can be satisfactorily accounted for by the doctrine of relation. The ship might have been taken in execution within the ten days: but the property must be in actual possession when execution is executed'; and, therefore, if the property were not passed by the bill of sale, there could be no valid execution. There is no doubt that there can be no such thing as an equitable title to a ship; and the case before the Vice-Chancellor (e) is, as to this, also very material. When the former act (f) passed, there was
not sufficient attention paid in framing its enactments to what No bill lies to might be its effect upon the principles adopted in courts of equity; compel the execution of and it was to remedy that deficiency that the last act was introan indorsement duced, (g) by which it is now completely established that there on a ship's certificate of re- can be no such thing as the equitable ownership of a ship. I gistry after the well know that a bill does not lie to compel the execution of the time given by
indorsement after the ten days are expired: but, if it were possible But semble, that equity will for the plaintiff to bring his case before the court, within the time afford relief by limited-would the court refuse to entertain it? Or, if the Legiscompelling the execution of lature had given twelve months instead of ten days,—would the the formalities of the register court refuse to aid the party in such a case by the exercise of its
(a) See anle.
(c) IT Vez, 637.
(e) Thompson v. Smith, 1 Madd. 395.
(f) 26 Geo. 3. c. 60.
ss. 36 & 37. and
jurisdiction to compel the specific performance of an agreement ? acts, where I cannot imagine that the Legislature meant to declare, that there choate title in may be a sale of a ship at sea, but that there shall be no means, he apply within either at law or in equity, of compelling the execution of those the proper time formalities which it has directed to accompany the transfer. (a) is fixed by law) The Legislature could not have meant to deny to the suitor, in or,
reasonable such a case, the advantage of equitable relief. Its meaning must time, where it have been, to give the party an inchoate right to the property Seil vide the
islet: indefinite. which is the subject of the assignment.” His Lordship subse- time allowed quently observed,—“ When this case was before me,
by the new reI considered
gistry act, 4 that there are some important points of law which will be involved Geo. 4.c.41. in its decision; and resolved, before I did any thing further, to the consehave the opinion of some other judges upon these questions. I have quences of since received from Lord Chief Justice Abbott, now on the Circuit, a note, containing the opinion of himself and the Lord Chief Justice of the Common Pleas, (Sir Vicary Gibbs) which is, in substance,—That the transfer of a ship at sea, if all the requisites of the registry acts have been duly complied with at the time of the transfer, vests the property in the vendee, subject only to be divested, upon the neglect of the vendor to make the indorsement on the certificate of registry within the ten days after the return of the ship into port. That, if a bankruptcy intervene before the arrival of the ship, the indorsement being only an act of duty.on the part of the vendor, and passing no interest, may be performed by the bankrupt himself. And that, (as in this case) if the vendor have given a power of attorney to perform this act of duty previous to the bankruptcy, his attorney may carry it into effect, notwithstanding the act of bankruptcy has intermediately occurred. This is the opinion which these judges have given; and on the authority of their communication I shall act as if it were the settled law of the case, which, indeed, upon looking into the acts of Parliament, and considering the opinion delivered to me, I think that it is.”
XL. But if the forms of registration be not complied with, however peculiar the circumstances of the case may be as between the parties themselves, the law will not relieve them. Therefore, where A., having contracted for a ship to be built for him in the East Indies, agreed, during the time of its building, to sell a share to B.; and B. paid a part of the price in pursuance of the agreement; and afterwards, on the ship's arrival in England, A. caused
(a) See the case of Mcstaer v. Gillespie, 11 Vez. Jun. 621, and the cases
commented upon in Abbott, p. 77.
tions in the
her to be registered, and accounted with B. as part-owner ; but B.'s share was never on the register as part owner; the Court of King's Bench decreed that B. had no legal interest in the
ship. (a) Of the altera
XLI. We have given the above cases, as being the more
recent decisions of the courts under the former registry acts system of registry, under
26 Geo. 3. c. 60. and 34 Geo. 3. c. 68. The new act 4 Geo. 4. 4 Geo. 4. c. 41.
c. 41. has introduced a most important amendment in the laws of registry, in most of the particulars upon which these cases turned. It requires indeed, as an indispensable condition, that all transfers of ships, or any interests therein, shall be by bill of sale or other instrument in writing. 2. That such bill of sale, &e. should recite the certificate of registry. In these two circumstances, the new act is in perfect agreement with the former registry acts. But it adds this important proviso (6) that no bill of sale shall be deemed void by reason of any error in such recital,
or by the recital of any former certificate of registry instead of the of the recital existing certificate, provided the identity of the ship, intended to cate of register be conveyed, be effectually proved. The clause in the 34 Geo. 3. in the bill of c. 68. s. 14. had always been strictly construed; and many consale.
tracts, which were brought into discussion in the courts, had been pronounced invalid, from the omission to recite the certificate of registry in the bill of sale. The necessity of reciting the certificate of registry in the bill of sale was founded upon public policy; (c) and this principle is effectually guarded in the new act
. But the substantial justice of a contract is also protected, by declaring that it shall not be invalidated by error or mistake in the recital of the certificate.
XLII. We have before stated the important amendments which the new registry act has introduced with respect to the transfer of vessels and the indorsements upon the certificate, both as to the time and the manner in which they are to be made. A sufficient but defined time is allowed for all indorsements on the certificate, under whatever condition the vessel may be at the time of sale : but the transfer is Transfer not not rendered null and void by the omission to make the indorse- by omission to ment within the time allowed, as it was under the 34 Geo. 3. make the inC. 68. s. 16. The consequence of permitting the given time, the certificate, (namely, thirty days) to elapse, is, that the purchaser, though his within thirty
(a) Stringer v. Murray, 2 Barn. & Ald. 248. And see Camden v. Anderson, 5 T. R. 709. Curtis v. Parry, 6 Vesey Jun. 739. Maester v. Gillespie, 11 Vesey, 621. These are express authorities to shew that the register is conclusive evidence of the legal title, where the ship has once passed by bill of sale; and that the ownership must be evidenced by the register, and the register alone. Sce
et parte Yallop, 15 Ves. 60.
(1) See ante, 4 Geo. 4. c. 41. S. 29.
(c) Biddell v. Leeder, 1 Bam. & Cress. p. 327. In this case it was decided that an executory agreement to transfer a share of a vessel is void by the 34 Geo. 3. c. 68. $. 14., for not containing a recital of the certificate of registry. See this case, ante.
4 Geo. 4. c. 41. contract be prior in point of time, will incur the hazard of being days. postponed to a purchaser who has used due diligence. The intent of the act being expressed to be, that the several purchasers or mortgagees shall have priority one over the other, not according to the respective times when the particulars of the bill of sale (by which the transfer is made) is entered in the book of registry, but according to the time when the indorsement is made upon the certificate of registry. This clause will at once secure all that notoriety of transfers which the policy of the registry acts requires, and will at the same time prevent the many hardships which occurred under the former acts. We thus see that there things are necessary to secure the title of the purchaser of a ship,1. A bill of sale in writing. 2. The production of such bill of sale to the officers of the customs, and the recording of it in the book of registry: 3. An indorsement on the certificate of registry within thirty days, if the ship be sold in her home port ; and within the same period of time after her return to her home port, if she be sold when absent from such port; but the penalty upon the omission of this latter formality on the part of the purchaser is not, as we have seen, to avoid his contract, but to postpone his title to that of intermediate purchasers.
XLIII. It will be necessary in all cases on the registry acts, The registry to observe the distinction, that trusts implied, or arising by. rative only upoperation of law, are not within the meaning of the statute. on the voluntaThe registry acts are imperative upon voluntary contracts be- parties, not on tween party and party only: but are not so upon transfers titles arising by
operation of which are made by the act of the law, or by causes inde- law. pendent of the immediate will of the parties. Thus, assignments by commissioners of bankrupts to assignees under the bankrupt laws, and titles passing to executors and administrators, in case of death, are not that species of transfer the regulation of which was in the contemplation of the Legislature. (a) With respect to executors, administrators, or next of kin, the immediate point has never, we believe, come before the court : but in the case of Blox
(a) 6 Vez, Jun. 139. 15 Vez. Jun. 68.
ham v. Hubbard the Court of King's Bench had no difficulty in deciding that these acts had no application to cases of transfer by operation of law, such as from the commissioners to the assignees of a bankrupt trader. (a)
XLIV. We have already had occasion to observe, that an assignment of freight was not within the provision of these gtatutes, and that although the bill of sale of a ship might be void by a neglect of the proper forms of these acts, a contract for freight, or an assignment of freight, might be valid and capable of being enforced in law or equity. And it would, we apprehend, make no difference whether the assignment of freight were contained in the
same instrument, which was void as to the ship, or in a different Notwithstand- instrument. (b) A point, which resembles in substance the case sale of a ship above put, has been decided in the Court of King's Bench. The may be void decision of the court was, that though a bill of sale for transferring have a remedy the property in a ship, by way of mortgage, might be void as such, on a collateral for the omission of reciting the certificate of registry therein, yet covenant contained in the the mortgagor might be sued upon his personal covenant, contained same instrument.
in the same instrument, for the repayment of the money lent. (c) In giving judgment in this case, Lawrence, J. observes, “that
the object of the act will be very sufficiently answered, if we hold Kerrison v. Cole, 8 East. it to make void so much only of the instrument as is meant to 231.
convey the property in the ships. The object of the Legislature was, that it should be made appear who were the real owners of British ships, in order to prevent any transfer of them to foreigners, who might navigate them under the privileges of the British flag. That will effectually be done by saying that the transfer shall be void if the requisites be not complied with, without avoiding a collateral covenant for the payment of money contained in the same deed by which the ships were intended to be mortgaged. And this construction is according to the rule of the common law, as laid down by Hutton, J., in Ley's Rep. 79. that when a good thing and a void thing are put together in the same grant, the common law makes such a construction that the grant shall be good for that which is good, and void for that which is void.” So,
likewise, it has been determined that the ship registry acts do not kins, 5 Taunt prevent a person having a lien upon papers depositėd with him
belonging to a ship which he is commissioned to sell. (d)
Mestaer v. At
(a) 5 East. 407.-Sed vide the new act, 4 Geo. 4. c. 41.
() Spledt v. Lechmere, 13 Vez. Jun, 58€.
(c) Kerrison v. Cole, 8 East. 231.
(d) Mestaer v. Atkins, 5 Taunt. 381. In this case it is clear that the custody of the papers gave the party detain