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XLV. Many cases, under the former acts have arisen as to the The former
registry acts operation of the statutes of bankruptcy, where the possession, did not affect order, and disposition of the ship, have been left with the vendor, of bankruptcy but the vendee has complied with all the requisites of the acts, as to reputed and become the registered owner. The cases upon this headownership. which are not very important since the late act, will be considered in the second part of this Treatise. It is manifest, however, from all the cases, that where the title of a ship comes strictly and properly in question, no claim can be received in opposition to the modes of conveyance required by the law. The statutes of bankruptcy, particularly the 21 Jac., which are directed against the false appearances of property, and which are meant to punish those who enable the trader to procure for himself a delusive credit by a reputed ownership, were held not to be at all affected by the former registry acts. The registry acts relate only to the formalities of title as between the parties contracting and the public: but they do not interfere with the operation of any other statutes which are enacted to prevent false credit, and which, by assuming the possession, order, and controul of property, as the indicia of right, deal with it as belonging to the bankrupt in whose disposition they find it, though the legal ownership and title may, in fact, be in another. In the cases under the act of 21 Jac. there are always two parties, the real owner and the apparent owner; and the real owner is punished for the fictitious semblance of property which he enables the apparent owner to hold out. This branch of our subject does not fall under our present enquiry: but the cases under it will be of little use since the 43d section in 4 Geo. 4. c. 41.
XLVI. There are cases, however, independent of the bank- Robertson v. rupt laws, in which the possession of a ship has been deemed suf- French, 4 East.
130. ficient evidence to maintain an action, though the legal title may be in another. Thus, in Robertson v. French, (a) which was an action on a policy of insurance, the Court of King's Bench determined that the property of a ship might be proved by parol evidence of the possession of the assured, unless disproved by the production of the written documents of the ship under the register acts. They likewise held that such parol evidence of ownership, arising from possession at a particular period, was not disproved by shewing a prior register in the name of another, and a subsequent register to the same person. And in another case, in
ing them no power over the ship. He by the possession of the papers alone. could not send her to sea, or sell her, (a) 4 East. 130.
2 Taunt. 302.
the Court of Common Pleas, (a) it was decided that where the plaintiff bought and paid for a ship stranded on the English coast, but had no regular conveyance of her, and the defendant possessed himself of parts of the wreck, which drifted on his farm,
that the plaintiff's possession enabled him to recover for them in Sutton v. Buck, an action of tort. The Court being of opinion that the possession
of a ship under a transfer, void for non-compliance with the register acts, was a sufficient title in trover against a stranger for parts of a ship being wrecked, Lawrence, J. in this case observed, “ That there was enough of property in the plaintiff to enable him to maintain trover against a wrong-doer; and although it has been urged that the contract is void with respect to the rights of third persons, as well as between the parties, yet, as far as regards the possession, it is good as against all but the
vendor himself.” Of the evidence XLVII. It was formerly the practice to produce, at trials afforded by the registry acts. at Nisi Prius, the register book of shipping, from the custom
house, as evidence of the title, both to establish an ownership on the part of the plaintiff, and to charge the defendant, if a shipowner, with the property in the vessel. This evidence was, for a long time, received without discussion or objection. But in the case of Frazer v. Hopkins, (b) when this question was brought before the Court of Common Pleas, they held that the register alone did not furnish even prima facie evidence to charge a person as owner of a ship in a suit between private individuals. Such a use of the register was certainly not in the contemplation of the Legislature ; and it is perhaps possible, though not likely to occur, that the name of a person may be introduced into the book of registers without his assent. Therefore, in a subsequent case, the Court of King's Bench determined that proof of the execution of a bill of sale of a ship to the defendant was not evidence to charge him, as an owner, with stores furnished to the ship, without shewing his assent to such sale. And they likewise determined that the register of a ship, naming a person as a part-owner, made by, and upon the oaths of others, was not even prima facie evidence to charge him as owner, without his assent or adoption. (c) “ For not
(a) Sutton v. Buck, 2 Taunt. 302. See also, to the same effect, Prouting v. Hammond, 8 Taunton 688.; and Dixon v. Hammond, 2 Barn, and Ald. 316.
(6) 2 Taunt. 5.
(c) Tinkler v. Walpole, 14 East. 226. and see Phillips on Evidence, tit. Ships' Registry, vol. 1. and 2. where this subject is examined with the usual ability and perspicuity of the writer.
withstanding," said Lord Ellenborough, “ the practice may have Tinkler v. Wab. prevailed for a long time, to receivé ship’s registers as evidence of pole, 14 East. the property being in the persons therein named; yet, when we are brought to consider the admissibility of such evidence against the defendant, in a case where he has done no act to adopt the register as having been made by his authority, we cannot give effect to it, without saying that a party may have a burthensome charge thrown upon him by the act of a third person, without his own assent or privity. If it had appeared that the defendant by any act of his own had recognized the register, he would have been liable to all the consequences as a part-owner, which it describes him to be: but here he has done no act to adopt it. His partner has, indeed, dealt with the property as if the defendant were a part-owner, by registering the ship in his name: but the act of a third person, without some act of the defendant to recognize it, cannot throw upon him a burthen, without violating the plain rule of law.” Mr. Justice Bayley said,—“ Before the first register act passed, there must have been other media of proof to charge a party as owner of a ship; and the object of that 'act was not to create evidence to charge any person named as owner, but that no person should have the benefit of the British navigation without registering his ship in the manner prescribed. It would be very unjust, in many cases, if a person could be charged as a part-owner, with the expenses of the ship, by having his name inserted in the register, without his knowledge. It would often be converted into an engine of fraud; for if the owners were not in good circumstances, it would be easy to introduce another name of a solvent man into the register, in order to procure credit ; and then, if that were evidence against him, he would be liable to be sued ;-and how could he be prepared to negative the evidence, if he knew nothing of the fact of such a register? The other owners named would be made parties to the action, so that he could not call them to disprove the fact.”
XLVIII. Upon the same principle, a register is not of itself evidence of a jointownership, in support of the defendant's plea, that other persons there named are jointly liable with him ; (a) nor is it evidence that the ship is British-built, as there described. (b) So, in an action brought by the plaintiff, as agent, on a policy of insurance, the register is not evidence to prove an averment that the interest in the ship is in the persons there described. (c) The Legis
(2) Flower v. Young, 3 Campb. 475. 240.
(c) Pirie v. Anderson, 4 Taunt. (6) Reussc v. Meyers, 3 Campb. 652.
Of the evidence lature has made the registration necessary to perfect a title : but afforded by the registry acts.
this does not make it of itself proof of the title. Property in a ship is to be proved now as it was proved before the acts of parliament relating to registers; as, for example, by proving actual possession in the party, or in those to whom he has committed it, or in those from whom he has himself derived his title. Any one of these media of proof, (accompanied by the evidence of the re
gistry, in order to make the other evidence admissible,) will be Register and
sufficient. But the register and certificate of registry are conclu
sive evidence of want of title against those who are not named in registry con
the register. Thus, in an action on a policy of insurance on dence of want of title against freight, where the interest in a ship and its earnings were alleged those not named therein.
to be in four persons, who were partners in trade, two only of whom were named as owners in the register, it was decided that the action could not be maintained, although it was proved as a fact, that the ship had been paid for by the four partners; for, as the plaintiffs claimed the freight only in right of ownership, they could not recover without proving that right; and it appeared
conclusively from the register that all the four partners had not Mac Iver u.
legal title to the ship. (a) But where the party sued as a partner Humble, 16
for the value of goods furnished for the owners of a ship was neither a partner in fact at the time, (having parted with his share sometime before,) nor held himself out as such, having previously withdrawn his name from the firm at the counting-house, and sent circular letters to the correspondents of the house, notifying the change, the Court of King's Bench held that he could not be charged, merely because having defectively conveyed his whole share in the ship before that time, he had subsequently joined with the assignees of the bankrupt partners in the ship in making a good title to it to a purchaser from the assignees. (b) In the above case, the defendant's name was on the register of the ship, with his own consent, until after the goods, for which the action was brought, were furnished; the court, however, considered it as a question to whom credit was given, and held that the evidence of the register was not of itself sufficient to charge him. In this case it is observed by Mr. Justice Bayley, “ That the object of the registry acts was to inform the government whether the owners were British, and to prevent ships belonging to foreigners from being navigated under the British flag; and the object was not to inform the tradesmen to whom they should give credit.
(a) Camden v. Anderson, 5 T. R. 169. But sce post, Dowson v. Longo 709. See likewise this case, ante. ster, MS. case.
(6) Mac Iver v. Humble, 16 East.
The cases of Young v. Brander, (a) and Frazer v. Marsh, (b) both of the evidence shew that a person may be deceived as to the true owner by look- afforded by the ing merely at the registers; and that, therefore, before trust is given, it is proper for the tradesman to inquire further.”
XLIX. There is a case, the authority of which seems doubtful, that in trover for a ship, if the plaintiff produce the original register, and attempt, unsuccessfully, to deduce title under it, he cannot afterwards rely upon his possession. On the contrary, it should seem that the plaintiff's possession of the ship would be the very best prima facie evidence of title he could give, and that the ship's register, though necessary to perfect a title, is no evidence per se of ownership. (c) There is another case, likewise, which seems questionable, in which it is stated, that where a ship is purchased by a British subject from a foreigner, the production of the copy of the register from the custom-house, in which the vendee is stated to be the owner, is evidence of property without producing the bill of sale. (d) It should seem, from recent decisions, that more evidence would be required; that it would be necessary to prove either the transfer in fact, or some acts of ownership and possession, indicating property. It has been held, however, sufficient to prove the transfer of a ship in France, (where it is usual to lodge the bill of sale with an officer, and to obtain a copy from a notary,) to produce such copy in evidence without proof of its having been examined with the original. The reason seems to be this ; that the court will give credit to a public instrument delivered out by the proper officer in a foreign country, though there may be an original, of higher authority, capable of production. (e) An affidavit of register, made by A. and B., stating that A., B., and C., are the owners, will not be evidence to affect C. Such evidence, as we have above shewn, was formerly deemed sufficient prima facie proof of ownership: (f) but the late cases, to which we have adverted, have decided otherwise. But in an action against the owners of a ship it is sufficient prima facie evidence of ownership, to put in an undertaking to appear for them, given before the commencement of the action by
(a) 8 East. 10.
(6) 13 East. 23. These cases will be cited in acother Chapter, together with such cases as have occurred between mortgagor and mortgagee, as to the liability for necessaries fur. nished to a ship.;-repairs, seamen's Wages, &c.
(c) Sheriff v. Cadell, 2 Esp. 617.
(d) Woodward v. Larking, 3 Esp. 237.
(f) Ditchburn v. Spracklin, 5 Esp. 31.; and Stokes v. Carne, 2 Campb. 69.