Possession necessary as a prudential precaution, though not actually required by law. Sed vide new provisions of transfers of ships to be by bill of sale or other instrument in writing, which is also required by the new registry act. (a) This provision is partly on account of the great value of this species of property, and the frequent occasions on which it is absent at very remote places from the supervision of the owner; and, in part, as an additional security to the public policy of the registry acts. These written documents thus constitute a title, by means of which the transfer of vessels is greatly facilitated, and is publicly recorded, and in most cases they are the only means by which such transfer can be made. When any ship is to be sold, she is, of course, either absent upon the seas, or in her home, or in some other port. If absent upon the seas there are necessarily no means of transfer but by assignment of the grand bill of sale; and such bill of sale, together with its due entry in the book of registry, according to the provision of 4 Geo. 4. c. 41., is a perfect transfer of the property. (b) Upon the return of the vessel to her home port, the buyer should confirm his purchase by an indorsement on the certificate of registry within thirty days, or his claim may be defeated by an intervening bankruptcy, or by some subsequent transfer, which may be first registered. (c) II. It is the same with respect to the purchase of a vessel in her home port. The forms of the registry acts must be observed.It is always usual, and, indeed, matter of prudence, for the purchaser to take actual possession of the ship: but it seems necessary as an act of caution rather than as a requisite of law. For 4 Geo. 4. c. 41. the title to personal chattels by the common law vests in the owner all possessory rights, and he is entitled to maintain actions of trespass or trover without a manual possession of the chattel itself. If a part only of a vessel be sold, it is manifestly impossible that such actual delivery should be made; and, in any case, where such possession is necessary, the possession of the other partowners will enure to the benefit of a purchaser of a part. SS. 43 and 44. nie, 4 Maule and Selw. 240. Before the new registry act, an actual possession was absolutely necessary to complete the title of a mortgagee, against an intervenMair v. Glen- ing bankruptcy. In Mair v. Glennie, the plaintiffs were assignees of T. Mair, a bankrupt; the defendants were assignees of Sharp and Co. T. Mair, the bankrupt, had transferred a ship and cargo at sea, to Sharp and Co., the other bankrupts, as a security for money borrowed: but, upon the arrival of the vessel in her home port, Sharp and Co. neglected to take possession, or to do any act to notify the transfer of the property to them. Upon these cir (a) 4 Geo. 4. c. 41. s. 29. (b) For the forms which the registry acts require, and the mode of complying with them, see ante, Chapter on the Registry Act. (c) Sec ante, 4 Geo. 4. c. 41. s. 37. cumstances the Court of King's Bench determined that the property should pass to the assignees of Mair, as being in the possession, order, and disposition of Mair, at the time when he became a bankrupt. It was likewise a collateral determination in this case, that an agreement between Mair and the captain, that the captain should have one-fifth share of the profit or loss on the voyage of the ship and cargo, did not prevent Sharp and Co. from taking possession, it not being such a part-ownership as to amount to a constructive possession for himself and others. (a) III. The case of Robinson v. Macdonell fell within the same principle. This case proceeded upon the authority of Mair v. Glennie. It was an action of trover for a ship. B. being the registered owner, executed a bill of sale of the ship to S., as a security for advances, which had been made by S. to B. At the time of the execution of the bill of sale the ship was at sea; she returned the latter end of the year 1811. S. did not take possession: but in May, 1812, the ship was registered in the name of S. Notwithstanding this alteration, the ship continued under the controul of B., who ordered her out for the whale fishery, appointed the captain, and exercised all the ordinary acts of ownership. S. became a bankrupt; the ship returned; and shortly after B. became a bankrupt. The question was, whether B. was the ostensible owner under the statute 21 Jac. 1. c. 19. so as to give his assignees a claim to the ship. The court were of opinion that B. was the ostensible owner; and Lord Ellenborough, in delivering the judgment of the court, said, "The register acts were passed for purposes of public policy, and the means adopted for effecting that object are such, that every person claiming title through the medium of a conveyance, as the act of parties, must shew a conveyance of the form and character prescribed by those statutes. The plaintiffs did shew an original title in the bankrupt, whom they represented, grounded upon such conveyances. Has that title been divested, as against them (they being the representatives also of the general body of creditors,) by any other conveyance? It is admitted that deeds alone, in the case of an unregistered ship, would not have that effect, and we think the registration and new certificate cannot produce it. These statutes do not affect titles passing by operation of law, as to executors or administrators in case of death; or to assignees generally in case of bankruptcy. In these cases a title may be transmitted without any of the forms required by the statutes; and if a title may be (4) But see the amendment made in c. 41. ss. 43. and 44. the law, in this respect, by 4 Geo, 4. Hay v. Fairburn, 2 Barn. and Ald. 193. transmitted without these forms in cases of bankruptcy generally, we see no reason why it may not be so done in a particular case, falling within the scope and operation of the statute of James, though these forms have been complied with in a conveyance to others, i. e. the Sharps; such conveyance being fraught with all the mischief that statute was meant to prevent. The register acts make certain forms necessary to the validity of transfers and conveyances, which antecedently would have been good and valid without them: but it was never intended by the Legislature that a compliance with these forms should give validity to a transfer and conveyance which antecedently would have been bad and invalid, and we think such an effect ought not to be attributed to them." (a) IV. A point nearly similar was again brought before the court in Hay and Others, assignees of Matthews, against Fairburn. (b) Matthews, the bankrupt, the registered owner of the ship Dolphin, assigned her, then being at sea, as a security for his debt. to the defendant Fairburn. The deed contained a covenant by Fairburn to re-assign upon payment of the debt, and the more important condition, that, until the sale of the ship, Matthews was to be permitted to have, hold, and enjoy the same, and to receive the ship's earnings for his own benefit. All the requisites of the registry acts were complied with so as to vest the legal interest in Fairburn. At the time of the execution of the assignment Matthews had possession of the vessel, and continued in possession, and in the apparent exercise of ownership, until his bankruptcy. The defendant never interfered in any way with the conduct or management until the 1st of June, 1816, when he took possession, displaced the master, and appointed one under himself. The commission against Matthews issued on the 11th of May, 1816, under which he was duly declared a bankrupt. Fairburn's demand upon the ship had been reduced by payments to about 5957.; he sold the ship, and the proceeds remained in his hands. The question for the opinion of the Court of King's Bench was, whether the bankrupt was not to be considered the ostensible owner under the 21 Jac. 1. c. 19. The court gave judgment for the plaintiffs, on the authority of the case of Robinson v. Macdonnell: but, on account of its importance, they permitted (a) 2 Barn. and Ald. p. 196, where this judgment is cited. And 5 Maule and Selw. 288. And see the alteration made, by the new registry act, in the law as to the mortgage of ships, and the application of 21 Jac. 1. c. 19. to the reputed ownership in cases of ships, ante, Chapter on the Registry Acts. (b) 2 Barn. and Ald. p. 193. it to be turned into a special verdict. The case was afterwards heard in the Exchequer Chamber, and the judgment of the Court of King's Bench confirmed. V. These cases illustrate, very strongly, the expediency, not to say the prudential necessity, of confirming a purchase of ships by an actual possession as soon as possible; not, as we have above said, that such possession is necessary to complete a title in law: but as a caution to remove such contracts from any possible operation of the bankrupt acts, and from the presumptions of courts upon cases where an execution may issue against an apparent owner. Hodgson, Thus, in the recent case of Kirkley v. Hodgson, which was Kirkley v. determined under the following circumstances. A. B. being sole 1 Barn. and owner of a ship, by indenture of the 24th June, 1819, assigned Cress. 588. three-fourth shares of it to a creditor, as security for a debt. The deed contained clauses by which the creditor was to re-convey the three-fourth shares upon payment of his debt; and a power of sale was given to the creditor, in case the debt was not paid within a given time. No possession was given, and A. B. was to be permitted to freight the ship, and to load cargoes from time to time, &c., and was to insure the ship for the amount of the debt in the name of the creditor; or otherwise to assign the policies to him. At the time of the execution of the deed, the ship was absent from her port of registry on a voyage to North America: but all the forms prescribed by the ship registry acts, as to the transfer, were duly complied with. The ship returned to her port of registry in July 1819, and was constantly employed from that time till February 1822, by A. B. in carrying cargoes for his own use, and on his sole account; and he continued during all that time in the actual possession of the ship, and proceeded to manage and navigate her without the interference or controul of the creditor. A. B. having become bankrupt, it was decided in the King's Bench, that as he had once been the real owner of the ship, and had never done any thing to make it notorious to the world that he had ceased to be the owner of the three-fourth shares, he continued to be the apparent owner of those shares, with the consent of the true owner, down to the time of the act of bankruptcy, and, therefore, that those shares passed to his assignees, as property, in his order and disposition, within the meaning of the 21 Jac. 1. c. 19. (a). (4) The Reader is referred to the very learned judgment of Mr. Justice Bayley in this case, which is too long for insertion in this Treatise, 1 Barn. Of the transfer and mortgage of ships, and by 4 Geo. 4. c. 41.; and the qualification the 21 Jac. 1. of c. 19. s. 11. (as to reputed ownership) in such cases of mortgage and transfers. VI. Amongst the other benefits conferred upon the mercantile body by the new registry act, 4 Geo. 4. c. 41., it is perhaps the shares of ships, most important, that by a series of brief and perspicuous clauses, it has not only afforded the greatest possible facility to the transfer of ships, and shares of ships, but has, at the same time, so qualified the general law, and particularly the act of 21 Jac. 1. c. 19., as to reputed ownership, as to give to the transfer and mortgage of a ship, or shares of a ship, a degree of security never hitherto possessed by them. By the 29th section, the statute of 4 Geo. 4. c. 41., as we have shewn in the Chapter on the registry acts, requires all transfers of ships, or shares, to be by bill of sale, or other instrument in writing. By the 35th section, no such bill of sale, or other instrument in writing, is valid to pass the property of a ship, or share of a ship, until such bill of sale shall be produced to the registering officer of the ship's port, and an entry of such bill of sale and its particulars, be made by such officer in the book of registries. And if the ship's certificate of registry shall be produced to the officers at the same time (as in common prudence it ought to be, if the ship be in the port of transfer at the time) the registering officers are directed to make an indorsement of such bill of sale upon the certificate of registry. And further (for the convenience of future transfers) the same officers are directed, if required, to certify (by indorsement on the bill of sale) that such sale has been duly entered and indorsed on the certificate of registry. By the 36th section, such entry in the book of registers shall render the bill of sale or mortgage valid and effectual to pass or bind the property to all intents and purposes; subject only to the following limitations, that is to say, that when the bill of sale has been so entered, thirty days from the date of entry (if the ship be in her port), or thirty days from the day of the ship's arrival in her port (if she shall be absent) shall be allowed for the production of the certificate of registry, and for the indorsement upon it of the particulars of the bill of sale. If the certificate be then produced and indorsed, the transfer is complete, and passes the property. If it be not then produced, any other transfer (the parties to which shall first produce the certificate) will be entitled to such indorsement, and of course to a priority of property in the ship or share. By the 44th section of the same act, when any mortgage has been so duly registered, the rights of the mortgagee will not be affected by any act of bankruptcy of the mortgagor, although such mortgagor may be at the time the reputed owner of the ship or share, and may have the order and disposition of the same. ་ |