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1818.

HAY against FAIRBAIRN.

for the plaintiffs, damages 5857., subject to the opinion of the Court on the following case.

Matthews the bankrupt, the registered owner of a ship called the Dolphin, being indebted to the defendants, by indenture on the 22d November 1815, (reciting the certificate of the registry of the ship,) assigned the ship then being at sea to the defendant Fairbairn, as a security for his debt. The deed contained a covenant by Fairbairn to re-assign the same to the bankrupt on payment of the debt; and that until the ship should be sold under the deed the bankrupt was to be permitted to have, hold, and enjoy the same and to receive and take the gains and profits for his own use and benefit. A copy of this deed was delivered on the 22d November to the proper officer of the custom-house at Sunderland; and on the return of the vessel the requisites of the register act were complied with so as to vest the legal interest in Fairbairn. At the time of the execution of the assignment the bankrupt had the possession of the ship, and continued from that time until his bankruptcy to exercise all the acts of ownership, by appointing captains, chartering the vessel, repairing and insuring the same at his own expence; but she was navigated under the certificate of registry which had been granted to the defendant in compliance with the register acts. The defendant never interfered in any way with the conduct or management of the ship until the 1st June 1816, when he took possession of the same, displaced the master from his command and reappointed one under himself. The commission against Matthews issued on the 11th May 1816, under which he was duly declared a bankrupt. The defendant's demand upon the ship had been reduced by payments to about 5957.; he sold the ship, and the proceeds thereof remained

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remained in his hands. The question for the opinion of the Court was, whether the bankrupt was not to be considered the ostensible owner under the stat. 21 Jac. 1. c. 19.

Tindal, for the plaintiffs. The bankrupt at the time of his bankruptcy had the ship in his possession, order, and disposition, by the consent of the true owner; and this case falls within the stat. 21 Jac. 1. c. 19. s. 11., unless the ship register act operates as a repeal of the former statute as far as ships are concerned. In Robinson v.

McDonnell (a), T. 56 G. 3., this very point was decided by this Court. There Bell and Clarkson, the registered owners, executed a bill of sale to the Sharps as a security for advances which had been made by the Sharps to them. At the time of the execution of the bill of sale the ship was at sea; she returned the latter end of 1811. Sharp did not then take possession; but afterwards, in May 1812 the ship was registered in his name. Notwithstanding this alteration the ship continued under the orders of Bell and Clarkson, who exercised all the ordinary acts of ownership. The Sharps became bankrupts: the ship returned, and shortly afterwards Bell and Clarkson became bankrupts. Upon these facts this court were of opinion that Bell and Clarkson were the ostensible owners within the 21 Jac. 1. c. 19. s. 11.; 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

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1818.

HAY

against FAIRBAIRN.

1818.

HAT against FAIRBAIRN.

form and character prescribed by those statutes. The plaintiffs did shew an original title in the bankrupts 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 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."

The Court then called upon Richardson, who admitted that he could not distinguish this from the case cited, and they gave

Judgment for plaintiffs. (@)

(a) The case was afterwards turned into a special verdict.

-1818.

THOMAS against VANDERMOOLEN.

Comyn

Friday,

Nov. 20th.

plea was pleaded calculated to raise issues requiring different modes

ASSUMPSIT for goods sold and money count. Where a sham Plea, to counts for goods sold, a judgment recovered, and to the other counts payment. on a former day obtained a rule to shew cause why the plaintiff should not be at liberty to sign judgment notwithstanding these pleas, and why the defendant or his attorney should not pay the costs of the plea and of the application, on an affidavit that both pleas were false.

of trial, the

Court suffered the plaintiff to

sign judgment as for want of

a plea, and made the defendant or his attorney pay the costs occa

plea, and the costs of the rule for cor

recting the proceedings.

F. Pollock shewed cause. The Court will not try the sioned by the truth of a plea on affidavit; and the effect of the present application, if successful, will be to make it necessary in every case for a defendant to verify his plea by affidavit, which, in the case of a plea in abatement, is required by statute. If it be objected that there were two false pleas, and that one only would have been free from objection, the Court cannot consistently admit such a distinction, and allow a defendant to plead one false plea, but restrain him from pleading two. As to sham pleas, the Court cannot notice them as such; and although in the case of Blewitt v. Marsden (a), a similar application succeeded, yet there the plea was not only false, but was calculated to bring ridicule on the proceedings of the Court. Secondly, he contended that the plaintiff having ruled the defendant to abide by the plea, had so far recognized it as a good plea, that he was stopped from now making this application, the Court having in a late case de

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1818.

THOMAS against VANDER

MOOLEN.

cided, that after such a rule the plaintiff could not treat the plea as a nullity and sign judgment.

BAYLEY J. (a) The Court has no disposition to introduce a new practice; but the case of Pierce v. Blake (b), is an authority to shew what the duty of an attorney is with reference to this subject. There, Holt C. J. said, that he remembered a case where judgment having been given against a defendant above 40 years of age, he brought a writ of error, and assigned for error, infancy, and appearing by attorney, the Court fined the attorney for assigning those errors which were notoriously false and frivolous. Considering this, therefore, as an authority to shew that the Court may inquire whether an attorney has stated false facts upon the record, and may proceed against him accordingly; and considering also that the Court has in recent cases expressed their disapprobation of these pleas which raise issues requiring different modes of trial, and thereby impose on the plaintiff an improper difficulty, I feel no hesitation in saying that this is a plea of that description, and therefore that this application ought to be granted. It is true that in this case there has been a rule to abide by the plea, but that makes no difference: in fact it puts the defendant on his guard; for the rule leaves it to the party to abide by his plea or not, as he chooses; and if he abides by it, he must do so subject to all its consequences.

HOLROYD J. I am of the same opinion. It appears from the case cited from Salkeld, that the Court may

(a) Abbott C. J. was absent.

(b) 2 Salk. 515.

inquire

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