100%. and on failure of payment thereof he shall be committed to the 34 Geo. 3. common gaol, there to remain without bail or mainprize, for such time c. 68. as the said justice or other magistrate shall in his discretion deem proper, not being less than six months nor more than twelve months. (a) registry to be Rule 43. The said justice or other magistrate shall certify the Justices to aforesaid detainer, refusal, and conviction, to the person or persons cerity, and who granted such certificate of registry for such vessel, who shall, on mae de the terms and conditions of law being complied with, make registry of novo, § 19. such vessel de novo, and grant a certificate thereof conformably to law, notifying on the back of such certificate the ground upon which the vessel was so registered de novo. circumstan ces. Rule 44. So often as the property in any vessel belonging to any Instrument of of His Majesty's subjects shall by sale be transferred, in whole or in sale, § 20. part, to any other or others of His Majesty's subjects, and such vessel shall be required to be registered de novo, it shall be lawful for the officers empowered to make registry of vessels and to grant certificates thereof, to require, and they are hereby authorized and directed to require, the bill or other instrument of sale thereof to be produced to them; and in case such bill or other instrument of sale shall be so required to be produced, and the same shall not be produced to such officers, the said officers shall not make a registry, nor grant a cer- Registry tificate of registry de novo, for any such vessel: provided always, that under special it shall be lawful for the commissioners of customs in England and Scotland, respectively, if application be made to the said commissioners, and for the governor, lieutenant-governor, or commander in chief for the time being of the islands of Guernsey or Jersey, or of any colony, plantation, island, or territory to His Majesty belonging, if such application be made to any of them respectively, upon due consideration of the particular circumstances of the case, to give direction for registering such vessel de novo, and granting a certificate of such registry, notwithstanding such bill or other instrument of sale shall not have been produced as aforesaid, and such registry shall be made, and such certificate thereof shall be granted accordingly: provided always, that all the other regulations required by the laws in force concerning the registry de novo of vessels be complied with. vessels in Rule 45. In case there be any alteration of property in the same Alteration of port, by the sale of one or more shares in any vessel, after registering property in thereof, and the owner or owners, proprietor or proprietors of such same port, vessel, who were owners or proprietors thereof at the time such vessel § 21. was last registered, or whose property therein has not been so transferred, shall be desirous of having the vessel registered de novo, it shall be lawful for the proper officers empowered to register vessels, and to grant certificates thereof, and such officers are hereby authorized and required to register every such vessel de novo, provided all the regulations of 7 & 8 Will. c. 22. (b) and of all other laws in force concerning the registry of vessels de novo, be complied with. Rule 46. And whereas British ships or vessels, the property of How masters "which is in whole or in part transferred to persons not being subjects to act on "of His Majesty, are not entitled to the privileges of British ships "and vessels," it is enacted that, as often as any such transfer of sons not subproperty in any vessel shall be made while such vessel is upon the (a) See the note to Rule 29 of this title. sea, transfer at sea to per jects of His Majesty, $22. 34 Geo. 8. c. 68. on a voyage to a foreign port or ports, in case the master of such vessel is privy to such transfer, or, in case he is not so privy, as soon as he shall become acquainted therewith, such vessel shall proceed directly to the port or ports for which the cargo then on board is destined, and shall sail from such port or ports to which the cargo then on board is destined, to the port of His Majesty's dominions to which she belongs, or to any other such port in which she may be legally registered; and such vessel may take on board, in the port or ports for which her original cargo was destined, or in any other port or ports, being in the course of her voyage to the port of His Majesty's dominions in which she may be so registered de novo, such cargo, and no other, as shall be destined and may be legally carried to such port of Transfer in a His Majesty's dominions, where she may be so registered de novo; foreign port and if such transfer of property be made while such vessel is in any age. foreign port, and the master of such vessel is privy to such transfer, or, in case he is not so privy, as soon as he shall become acquainted therewith, such vessel, after having delivered the cargo then on board such vessel at the port or ports for which it is destined, shall sail from such port or ports to the port of His Majesty's dominions to which she belongs, or to any other such port in which she may be legally registered, and may take on board, at the port or ports for which her original cargo was so destined, or at any other port being in the course of her voyage to the port of His Majesty's dominions in which she may be so registered de novo, such cargo, and no other, as shall be destined and may be legally carried to such port of His Majesty's dominions where she may be so registered de novo; and if such transTransfer on a fer of property be made while such vessel is on a fishing voyage, Ashing voy and the master of such vessel is privy to such transfer, or, in case he is not so privy, as soon as he shall become acquainted therewith, such vessel, after having finished such fishing voyage, without touching at any foreign port or ports, except for the purpose of repairs or refreshments, or for delivering any part of the cargo she may have on board destined for such foreign port or ports, shall sail to the port of His Majesty's dominions to which she belongs, or to any other such port where she may be legally registered by virtue of the said act, and may take on board, at the foreign port or ports last described, or at any other port or ports, being in the course of her voyage to the port of His Majesty's dominions where she may be so registered de novo, such cargo, and no other, as shall be destined and may be legally carried to such port of His Majesty's dominions; and every such vessel as aforesaid shall be registered de novo as soon as she returns to the port of His Majesty's dominions to which she belongs, or to any other such port in which she may be legally registered by virtue of the said act; Failure of on failure whereof such vessel shall be from thenceforth deemed to be compliance. a foreign vessel, and shall not again be registered, and be entitled to Special cir- the privileges of a British vessel, unless upon special representation of umstances the circumstances of the case to the commissioners of customs in England, or to the commissioners of customs in Scotland, or to the governor, lieutenant-governor, or commander in chief for the time being of the islands of Guernsey or Jersey, or of any colony, plantation, island, or territory to His Majesty belonging, as the case may be, the said commissioners, governor, lieutenant-governor, or commander in chief, shall, respectively, on consideration of the special circumstances of the case, think fit to order, and in such case they are within limited times. hereby authorized to order, that the said vessel shall be registered, 34 Geo. 3. The bill stated that J. and T. Wright, being indebted to Addis in 1204. J. Wright, who was owner of the brig Union, agreed to assign to Addis one fourth part of the said vessel as a security for that sum, and accordingly signed an agreement by which he engaged to make over to Addis one fourth part of the vessel on the Tuesday following; or pay him 1201. and at the same time delivered to him the bill of sale of the vessel. The money was not paid, and Wright was about to execute a mortgage of one fourth of the vessel when he became bankrupt. The defendants, Baker, Brown, and Frisby, were chosen assignees, and employed the other defendants, St. Barbe, Green, and Bignell, ship-brokers, to sell the brig. These defendants, the ship-brokers, not being able to make a good title to a purchaser, from the bill of sale being in the plaintiff Addis's possession, agreed to pay him one fourth of the proceeds of the sale; and he thereupon gave them a bond of indemnity to secure them in doing so. The defendants, the assignees, commenced an action at law against the defendants, the brokers, for the money so paid to the plaintiff, Addis. This bill, therefore, was filed for the purpose of having it declared that the plaintiff was entitled to the fourth part of the vessel, and to stop the proceedings at law, on account of the proceeds thereof. The defend ants demurred to this bill for want of er Cox, contra, relied on the case parte Stadgroom, June 12, 1790, where Lord Thurlow held the vendee entitled under a bill of sale of a share of the property of a ship, though never actually in possession, on the ground that possession cannot be taken of a portion ofthe property, and the possession of the other part owners is the possession of all. (a) Macdonald, chief baron.-In a question of such general importance as the present the plaintiff has certainly, to say no more, shown a sufficient degree of doubt to make it proper that his claim should be investigated in the most solemn mode at the hearing of the cause, and not to be decided in the shape of a demurrer. The question whether the statute 26 Geo. 3. attaches on an agreement for the sale of a ship, as well as on the actual sale, is very important. I am not at present prepared to say that it does extend so far. The other question has been decided by Lord Thurlow in several cases; he considered the sale of a part of the property of a ship to be similar to that of a ship at sea, as actual delivery cannot take place. ANSTRUTHER'S Exchequer Reports. (a) Mr. Cox, in his note of this case, represented it as so determined. In Vez junior's report of it (p. 163) it is said to have been undecided. An absolute bill of sale of a ship at sea is void by stat. 26 Geo. 3. c. 60. § 17. unless the certificate of registry be recited therein; although the vendee give 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 his security. Rolleston against Hibbert. 3 T. R. 406. And though the vendee had also the grand bill of sale, and had taken possession of the ship immediately on her arrival, it was held that he could not retain the ship as having a lien on her, against the assignees of the vendor, who became a bankrupt after his transfer of the ship. 3 T. R. 406. The statute 34 Geo. 3. c. 68. § 18. giving a summary conviction against any master of a vessel who, having received the certificate of its register, shall wilfully detain and refuse to deliver up the same to the proper officers empowered to make registry, &c. on the requisition of the owner or major part owners, will not authorize the conviction of a master who did not comply with the requisition of the sole owner to deliver up such certificate to him, though expressed to be for the purpose of providing the necessary endorsement to be made on it at the custom house upon the transfer of the ship. R. against Pixley. 13 E. R. 91. A delivery of the grand bill of sale of a ship at sea is equivalent to a delivery of the skip itself. Atkinson against Maling. 2 T. R. 462. Notwithstanding the stat, of 26 Geo. 3. c. 60. § 17. enacts that a bill of sale of a ship shall be absolutely void, unless the certificate of the registry be truly and accurately inserted therein (see Rolleston against Hibbert), the Court of K. B. held, that a mere clerical mistake will not vitiate it. Rolleston against Smith. 4 T. R. 161. And the court of C. P. held that the endorsements on such certificate of registry need not be recited in the deed of assignment of a ship. [See now 34 Geo. 3. c. 68. § 15.] Capadose against Codnor. 1 B. & P. 483. Though a bill of sale for transferring the property in a ship by way of mortgage may be void as such, for want of reciting the certificate of registry therein, as required by stat. 26 Geo. 3. c. 60. § 17. yet the mortgagor may be sued upon his personal covenant contained in the same instrument for the repayment of the money lent. Kerrison against Cole. 8 E. R. 231. A. and B. being joint owners of a ship, A. conveyed his moiety to B.; but in the bill of sale the certificate of registry was not truly recited: B. took possession, and afterwards mortgaged the whole ship to A. who did not take possession; then B. ordered C. to repair the ship: afterwards B. conveyed one part of the ship to A. and the order to D.: held that the first bill of sale was an absolute nullity under the stat. 26 Geo. 3. c. 60. § 17. and that A. was liable to C. for the repairs of the ship in an action for work and labour brought by C.; A, not having pleaded in abatement that B. ought also to have been sued. Westerdell against Dale. 7 T. R. 306. The stat. 34 Geo. 3. c. 68. § 15. reciting that by the laws in force, upon any alteration of property in any vessel in the same port to which she belongs, an endorsement on the certificate of registry is required to be made; enacts that such endorsement shall be made, in the form therein expressed, and shall be signed by the vendor, &c. and a copy of such endorsement shall be delivered to the registering officer; or otherwise the sale shall be utterly null and void: and such officer is required to make entries thereof on the affidavit on which the original certificate was obtained, and in the book of registry, and to give notice thereof to the commissioners of customs. Then § 16. provides that if any vessel shall be at sea, or absent from the port to which she belongs, when such alteration in the property shall be made, so that an endorsement on the certificate cannot be made (assuming that the certificate is always with the ship); then it substitutes a bill of sale to be made in lieu of the endorsement on the certificate; requiring the same delivery of a copy, and the same entries and notice thereof, as was required for the endorsement of the certificate by the prior section, but that within ten days after the vessel's return to her port, the endorsement on the certificate, &c. shall be made as before required. Held that the provisions of the two sections comprehend every transfer of property in a ship; and that a bill of sale executed by a sole owner of a vessel belonging to the port of Sunderland to a vendee residing in London, at a time when the vessel was in the port of London, was void, for want of complying with the requisites of one or other of those sections; neither of them having been complied with; and that it was not sufficient for the vendee to have complied with the requisites of the stat. 7 and 8 Will. 3. c. 22. § 21. which requires a registry de novo upon any transfer of property to another port, and that the former certificate shall be delivered up to be cancelled. Hayton et al. (Assignees, &c.) against Jackson et al. 8 E. R. 511, Upon the transfer of a share in a vessel, it is not necessary that the endorsement upon the certificate of registration should express the share to be all the vendor's interest. The omission of the officer at the out-port to transmit a copy of the instrument to the custom house in London, does not invalidate the transfer. Underwood against Miller and Fatkin. I W. P. T. 387. Under the ship register acts (26 Geo. 3. c. 60. and 34 Geo. 3. c. 68.) a bill of sale transferring the property to a trustee, in trust for the underwriters not named, is at most only void (if at all) as to the objects of the trust, but sufficient to convey the legal title to the trustees. And such bill of sale of a ship at sea is valid, notwithstanding the omisssion of the officer at the out-port to which the ship belonged, to endorse the entry of the transfer on the oath on which the original certificate of registry was obtained, and to make a memorandum thereof in the book of registry, and to give notice of the same to the commissioners in London, as required by section 16 of 34 Geo, 3. c. 68; such acts to be done by the public officer being only directory. But the delivery of a copy of the bill of sale of a ship at sea for the purpose of making such entry and memorandum and giving such notice, being an act required to be done by the party himself to whom the transfer is made, for want of which the statute avoids the sale, must be complied with in order to convey the property; and therefore the purchaser under such circumstances having omitted to do so, cannot make a title to the ship per saltum, by getting her registered de novo, in another port where he resided at the time: for whatever may amount to a transfer of a ship to another port within the meaning of the statutes, at all events such transfer cannot be made by one who has no interest in the ship. Heuth against Hubbard, 4 E. R. 110. The ship register acts do not apply to a transfer of property by operation of law, such as from the commissioners to the assignees of a bankrupt, Bloxam et al. (Assignees) against Hubbard, 5 E.R. 407. Under the ship register acts 7 & 8 Will. 3. c. 22. § 21. and 26 Geo. 3. c. 60 3.4. 5. 16. and 34 Geo. 3. c. 68. § 15. 16. in order to make title to a ship sold, at sea, whether in whole or in part, such sale must be acknowledged by endorsement of the certificate of registry in the manner therein described, and a copy of such endorsement be delivered by the vendee to the persons authorized to make registry (which officers are directed to make an entry thereof, to be endorsed on the oath or affidavit upon which the original certificate of registry was obtained, and to make a memorandum in the book of registers, and to give notice thereof to the commissioners of customs); and it is not sufficient for the vendee to register such ship de novo, in another port where he resided, though he removed the ship there, and she never returned to her original port after the sale. 5 E. R. 407. An endorsement of a transfer of a ship in the same port made upon the certificate of the registry, and bearing date at the time of the transfer, but not signed by the vendor till three years after such certificate had been delivered up and cancelled, and had remained dormant during all the intermediate time: held not to confer a title to the ship under the register act 34 Geo. 3. c. 68. § 15. and other acts; such certificate having been so cancelled aud delivered up upon occasion of the vendee's obtaining a register de novo, (issued without authority,) which recited the cancellation of the former certificate. For the object of the register acts in requiring such endorsement is in order to notify the change of property to the public; and therefore it is required to be made on an existing acknowledged certificate, in use at the time; and consequently no title passed to the assignees of the vendee, who had become bankrupt between the time of the original transfer to him, and the signing of such endorsement by the vendor ; the vendee having also, before his bankruptcy, conveyed away the ship to third persons, for a valuable consideration, who were in possession of it. But quere, whether any title could be made under such register de novo, issued without authority, upon a transfer of the ship in the same port? And therefore the vendees of the bankrupt only held their possession on such defect of title in the assignees of the bankrupt. Moss et al. (Assignees) against Mills. 6 E. R. 144. A foreign-built ship, British-owned, is not required to be registered. Long against Duff. 2 B. & P. 209. The vice-admiralty courts abroad have no authority, upon the mere petition of the captain of a ship bound on a foreign voyage, to decree the sale of such ship, reported upon survey not to be seaworthy, or repairable so as to carry the cargo to its place of destination but at an expense exceeding the value of the ship when repaired. Nor does it appear that the master has any original autho |