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nature of the
Of the evidence the person who subsequently acted as their attorney in defending registry acts.it, in which he describes them as owners ; without further proof
of agency. (a) Of the general L. But in actions of this kind, where there is a difficulty evidence in an in proving the defendants to be owners, it will always be prudent action against to obtain from the custom-house, by a proper subpæna and notice, ship-owners. Sed vide amend- the original affidavit upon which the ship's certificate of registry law, in this re- has been granted. The proof of the subscription of the parties to spect by 4 Geo. this affidavit will, of course, be the strongest evidence against 4. c. 41. s. 41.
them, upon the principle, that it is their admission upon oath that they are owners. But as there are cases under the registry acts, in which some of the owners are excused from making the affidavit required by the 26 Geo. 3. c. 60. s. 10., the fact of their ownership must, of course, (as we have above shewn) be proved by other evidence than that of the register ; such, for example, as by some act of ownership; by some adoption or recognition of the register, or some quality or adjunct of possession, as, by contracting for freight, ordering repairs, or necessaries, concurring with other owners in a joint appointment of the officers of the ship, assuming a disposal of the ship or cargo, or having the accounts rendered to them. Any or all of these acts constitute a presumptive evidence of ownership, which, of course, may be rebutted by a proof of the contrary, in which the court and jury will have to decide upon the probability of opposite statements. It is the practice to produce at the trial the original book of registers from the custom-house: but this is not necessary; for as this book is a public document, an examined copy of an entry therein will be sufficient. (b). With regand to the proof of entries in public books, it is now clearly settled, that wherever an original is of a public nature, and admissible in evidence, an examined copy will equally be admitted. It is not necessary to cite cases to confirm this position, as it stands upon two strong public reasons; the first, the security of the public document, which would, of course, be endangered by frequent carriages backwards and forwards; and, secondly, for the convenience of courts and
public business. Sale of a ship LI. We have already shewn that if, upon the production of not avoided, or
the register, the requisites of the acts have not been complied
(a) Marshall v. Cliff, 4 Campb. 133. dence. It is no longer, therefore, a
(6) See 4 Geo. 4. c. 41. s. 41. Copies question as to the necessity of proof oaths and extracts from books of ducing the originals. registry may now be admitted in evi
with, and the omission appear to be with the public officers solely, defective, for and not with the contracting parties, it is no objection to the vest- the omission of ing of a title in the vendee. Several cases have decided that of the registry where every thing required to be done by the owners, in order to acts; or mis transfer their interest, is regularly performed, the neglect of the public officers. custom-house officers, whether in London or elsewhere, will not avoid the sale, or render them liable as owners to third persons.(a) The new act makes no alteration in this respect.
We have before seen that by the registry acts a trust cannot be raised in favour of persons not named in the register, (b) and that a ship purchased by one partner, and registered in his name only, shall enure as the separate property of that partner, although the purchase and outfit should be taken from the partnership funds, and the earnings placed to the partnership account. (c) There- The registry
acts are not of fore, whether any one be an owner or part-owner must be deters themselves evimined by the evidence of the register, and by nothing else : but dence of, and
need not state, these acts do not require that the nature or proportion of the inter- the particular est of the parties should be stated therein ; nor does it concern the proportions in
which partpublie to know in what particular union or division of interests owners are in
terested in a part-owners stand related towards each other. The statutes pro- ship. vide for the transfer of property in a ship from one subject to another : but they make no mention of the variation of interest between part-owners themselves. Therefore, in a case sent by the Ex parte Jones,
4 Maul. & Sel. Lord Chancellor to the Court of King's Bench, where the names 450. of two partners in trade appeared (amongst others) on the certifi- See 4 Geo. 4,
c. 41. ss. 30, 31, cate of registry as owners of a ship, that court determined, that 32. the registry acts did not prevent the shewing how, and in what proportions, the several owners were respectively entitled ; and, though the partners might derive title under different conveyances, yet, if their shares were purchased with the partnership funds, and treated by them as partnership property, and the partners became bankrupts, these shares were to be considered as joint property. (d) So, likewise, upon the rule that an agent cannot dispute the title Dixon v. Ham
mond, 2 Barn. of his principal, it has been decided that where a ship originally and Ald. 310. belonged to one of two partners, and had been conveyed to B. for
(a) Ratchford v. Meadows, 3 Bsp. 69. Heath v. Hubbard, 4 East. 110. Bloxam v. Hubbard, 5 East. 507. Underwood 6. Miller, i Taunt. 387. Hubbard v. Johnstone, 8 Taunt. 177. Dixon v. Ewart, 3 Merivale, 325. Thompson v. Leak, 1 Madd. 39.; and Thompson v. Smith, 1 Madd. 309.;
and see ante.
(6) Heath v. Hubbard, 4 East. 110.
(c) Curtis v. Perry, 6 Vesey, 739.; and ex parte Yallop, 15 Vesey, 60.
(d) Ex parte Jones, 4 Maul. and Selwyn, 450. And see 4 Geo. 4. c. 41. ss. 30, 31, 32, &c.
When a new registry may be obtained.
securing a debt, and B. became the sole registered owner of the
LIII. We shall conclude this Chapter by repeating what, ir substance at least, we have before stated, that these acts apply to merchant ships only; that is, to vessels traversing the sea, or trafficking upon the sea-coast. Vessels of war, and vessels of whatever built or character, belonging to his Majesty and the Royal Family, are not required to be registered. And lighters, barges, boats, and vessels of any built or description whatever, used solely in inland navigation, or in rivers, are not within the compass of these acts. (0)
(a) 2 Barn. and Ald. 310. And see (f) 7 & 8 Will. 3. c. 22. s. 21. Pronting v. Hammond, 8 Taunt, 688. (g) 4 Geo. 4. c. 41. S. 40. to the same point.
(h) 26 Geo. 3. c. 60. s. 19. 34 (6) 26 Geo. 3. c. 60. s. 22.
Geo. 3. c. 68, s. 22.; and 4 Geo. 4. (C) 28 Geo. 3. c. 34. s. 14. and 34 c. 41. passim. Geo. 8, c. 68. s. 19.
(i) 26 Geo. 3. c. 60. . 6. See like(d) 34 Geo. 3. c. 68. s. 21.
wise Laroche u. Wakeman,
Peake's (e) 26 Geo. 3. c. 60, s. 24.
N. P. p. 140.
What vessels &c. need not be registered.
OF SEIZURES AND FORFEITURES FOR THE BREACH OF THE
NAVIGATION LAWS, REGISTRY ACTS, &c. &c.
The penalties which have been enacted against persons guilty of violations of the navigation and registry acts have already been brought before the notice of the reader in the detail of the several statutes themselves. It will be seen that the forfeiture of the vessel, and sometimes of the cargo, is the ordinary penalty for a breach of these laws. Unquestionably these penalties are severe; and if they were exacted with a rigorous justice, which did not relax according to the circumstances of the alleged case of forfeiture and seizure, they would deserve the character of harshness. The Discretionary Legislature, however, notwithstanding its jealousy and suspicion power vested
of lest these salutary laws, framed for so many important interests, the Treasury should be evaded or violated, has introduced an equity and discre- of Customs in tion, established by several acts of parliament, to controul their the execution application; thereby accommodating them to those accidents, and tion and the sometimes to those mixed cases, where an innocent intention is not registry acts, altogether apparent, which are constantly occurring in a course of shipping, trade,
and commerce. extensive trade and commerce. In furtherance of this principle, and with a view to relieve merchants and ship-owners, the lords of the treasury and the commissioners of customs are empowered by an act of parliament, to which we shall presently advert, to restore ships and goods seized for a violation of these laws;, such power to be limited to those cases where there is no proof of fraudulent intention.
1. One of the most able decisions in this class of cases of equit- The Betty, able constructions is that by Lord Stowell, in the case of the Rob. 220. Betty, Cathcart. It was the case of a British vessel, sailing without a register from circumstances of necessity. That learned judge decreed her not to be forfeited under the navigation acts. revenue and navigation laws,” he says, “are certainly to be construed and applied with great exactness: they are framed for the security of great national interests; and the effect of such laws,
The Betty, founded on great purposes of public policy, must not be weakened
by a minute tenderness to particular hardships. At the same time,
impeachable."(a) The ship was directed to be restored. 27 Geo. 3. c.32. II. One of the leading acts, with respect to the vesting of a dis51 Geo. 3. c. 96. cretionary power in the commissioners of the customs to restore
vessels and goods seized and forfeited for a violation of the revenue Powers of com- laws, was the 27 Geo. 3. c. 32. This most equitable and benemissioners of
ficial law, originally confined in its application to revenue seizures, store seizures, is extended by a subsequent statute, (b) which authorizes the com&c.
missioners of customs in England and Scotland, according to their respective jurisdictions, to order any goods whatever, or any ressels, boats, &c. that shall be seized as forfeited, either by any officer of customs, or by any other persons whatsoever, by vintue of any act of parliament made for the protection of trade, the benefit of commerce, or the encouragement and increasing of shipping and navigation, or in pursuance of any other act of parliament in any respect relating to the department of customs, to be restored to the proprietor, whether such goods, &c. shall have been seized as forfeited in Great Britain, or on the high seas, or in any other of his Majesty's dominions, settlements, or plantations. This discretion, however, is not to be exercised except evidence shall be given to
customs to re
(a) i Rob. 240. See likewise the case of the Pelican, 2 Dodson 194.
(6) 51 Gco. 3. e. 96. s. I.