1804. LYON versus MELLS. a promise to be made by the defendant; and it is proved by shewing the nature of his employment. In other and Another words, it is implied in law. And if it turns out not to be complied with in fact, this we consider as a personal negli gence in the owner for which he is answerable; or more properly, it is that which he has undertaken to do and a term which he must himself see is complied with. Now consider the terms of the notice. [His lordship read the notice.] I have before stated this is merely a neglect in the owner of the vessel; it does not therefore come within the exception as to that loss, for which the owner of the goods is to be paid at the rate of 101. per cent. only. It does not come within the meaning of the words, a loss or damage occasioned by want of ordinary care or diligence in the master or crew of the vessel. The counsel for the defendant seemed to admit, in this case, that if it was to be considered as a neglect of the owners themselves, they would be answerable; for he admitted, that if the owners had been present at the time when the representation was made by the master of the vessel, they would be liable upon the undertaking that the vessel was tight. As this is not a neglect of the master it is impossible to make the owners liable for any part of the loss in this case, not even for their servants' negligence, up to 101. per cent. if it is understood that for their own negligence they are not to be liable at all. If these terms were admitted they would not be bound even to find a crew sufficient to work the vessel; and as their responsibility can never exceed the value of the vessel and the freight, they would find a leaky vessel, and so by their own fraud, not render themselves liable, in any possible case, for so much even as the 101. per cent. which they hold out as the utmost limit. Then, how is the case affected by the clause with respect to the additional freight; and does that clause take the case out of the responsibility of the owner? It is addressed to those losses which may arise by the act of GOD or otherwise. Such increased freight, therefore, can only be payable for that which is an object of risk, that which may arise from accident or chance, and not that which is certain or nearly so; such as is the 1 1804. LYON versus MELLS. case of a leaky vessel unfit for the purpose of carrying goods. Every agreement also must be so fairly construed that the parties shall not be able to take advantage of their and Another own wrong; and construing this agreement in its terms, according to the fair meaning of the parties, it was clearly the object of the parties to secure themselves against loss in those cases only where the law would have made them answerable for the acts of others, and not where they would be answerable for their own acts. This case, therefore, is not within the notice, and the VERDICT MUST BE ENTERED FOR THE WHOLE SUM. BLOXAM, Knight, and two Others versus HUBBARD. 19th June. Where one of four assignees of a bankrupt is removed by order of the Lord Chancellor, without appointing another, or a new assignment being made by the commissioners, or a re-assignment by such removed assignee, the three remaining assignees cannot maintain trover for the whole of a ship belonging to the bankrupt, but only for three-fourths thereof, for the whole property in the bankrupt's effects is not vested in them by such order of removal alone. The statute, 34 Geo. III. c. 68, s.15 and 16, applies to any alteration of property in a ship, whether in the whole or part thereof, and if the wholeof a ship at sea be transferred to a purchaser at another port, who intends to obtain a register de novo at such other port, he must comply with the forms prescribed in the 16th section of that statute. THIS versus was an action of trover, to recover two third parts BLOXAM, Knt. of the ship Fishburne, tried before Lord ELLEN BO- and Others. ROUGH, after Hilary term, 1804, at Guildhall; verdict for the plaintiffs; damages 23261. 6s. Sd. and costs 40s. subject to the opinion of the court upon the following case :-"Thomas Ward, the` bankrupt, being the origi 1804. BLOXAM, Knt. and Others versus HUBBARD. 4 nal and sole registered owner of the ship Fishburne, belonging to the port of Newcastle-upon-Tyne, cleared the said ship outwards for the Baltic in April, 1800, where she was detained for a considerable time by the embargo of the Emperor of Russia. On the 9th of November, 1801, Ward, by regular bill of sale, assigned the whole ship, Fishburne, then at sea, in consideration of 4000l. to the defendant, who then resided in London. The grand bill of sale of the whole ship was also delivered to the defendant. On the 2d of December, 1801, Ward committed an act of bankruptcy, upon which a commission afterwards issued against him, and he was duly declared a bankrupt. On the 2d of January, 1802, the defendant registered the said ship, de novo, in the port of London, and the original certificate granted to Ward, which purported, on the face of it, to be of the ship Fishburne, belonging to Newcastle-upon-Tyne, was delivered up and cancelled. On the 19th of February, 1802, the defendant sold the whole of the said ship by public auction to Thomas Brown, Robert Brown, and Thomas Old, for 36301. (the net proceeds being $4891. 10s. 8d.) and by bill of sale of the 5th of April, 1802, assigned her to them, who afterwards sent her to sea, where she was lost on the 20th of February, 1803. The Fishburne never returned to the port of Newcastle-upon-Tyne since she cleared outwards from that port for the Baltic in April, 1800; but the embargo being taken off, she arrived at Plymouth, but before the execution of the bill of sale by Ward to the defendant, she sailed again, and was absent at the time of the execution thereof. She afterwards returned to the port of London, and immediately thereupon the defendant obtained a new register. No transfer of property in the same ship, or any part thereof, appears in any document of the custom-house of Newcastle-upon-Tyne, to the plaintiffs, or on the certificate of the ship's registry, nor have the plaintiffs taken out a new register; and no demand was proved on the trial to have been made of the said ship upon the defendant. The plaintiffs, together with one John Glen Johnson, were appointed assignces of the estate and effects of the said Thomas Ward, under the above mentioned commission, by an assignment, dated the 13th of April, 1802. On the 22d of January, 1803, the LORD CHANCELLOR, by his order, removed the said John Glen Johnston from being an assignee, which order reciting that a petition had been presented to the LORD CHANCELLOR by the plaintiffs, being three of the creditors and three of the assignees, stating that the said John Glen Johnston, on or about the 7th of December, 1801, being prior to the date of the said commission, received from the bankrupt, whilst he was a prisoner for debt in the King's Bench prison, and after the said Thomas Ward had committed one or more act or acts of bankruptcy, certain bills of exchange, which bills the said John Glen Johnston, contrary to his undertaking to that effect, had refused to be delivered up for the benefit of the estate of the said Ward; and that the said John Glen Johnson had departed these kingdoms, and was, as the petitioners were informed and believed, gone to Petersburgh, in Russia; and praying (inter alia) that the said John Glen Johnston might be discharged from being one of the assignees of the estate and effects of the said Thomas Ward, concluded as follows: "Now, upon hearing the said 'petition read, and what was alleged by the counsel for the petitioners, I do order that the said J. G. Johnston be forthwith removed from being an assignee of the said bankrupt's estate and effects, and let him and his partners be restrained from receiving any dividend upon their debt proved under the commission against the said Thomas Ward, until my further order.-ELDON, C." No reas signment, release, or other instrument, hath been executed by the said J. G. Johnston to the plaintiffs, nor any new assignment by the commissioners in consequence of the said order. Question-whether the plaintiffs are enti tled to recover in this action? HALL, B. for the plaintiffs. 1st. The action is well brought in the names of the present plaintiffs. On the VOL. III. N3. 22. 3 R 1804. BLOXAM and Others HUBBARD. versus 1804. BLOXAM death of any one assignee his interest survives to the remainder, and so upon a removal of an assignee, even and Others without a reassignment and without appointing another HUBBARD. in his place. Stat. 5 Geo. II. c. 30, s. 31. Cooke's Bankrupt Law.* Ex parte Bainbridge. versus Even if it were not so, this is an action of tort, and one assignee may bring it without the others' joining, for the objection can only be taken advantage of by plea in abatement; Sedgworth v. Overend. And the assignees have a good title to a ship belonging to the bankrupt vested in them by operation of law, without being compelled to take out a register; for the registry acts do not apply to the case of a transfer by bankruptcy. Secondly, The defendant has not a good title. The requisites of the registry acts were not complied with by the defendant after the bill of sale from Ward. Heath v. Hubbard,§ Moss v. Charnock.|| And if the requisites of the act were, in fact, complied with, by merely taking out a new register, that was not done till after the bankruptcy, and so could not pass a good title to the ship as against the assignees. Thirdly, There is a sufficient conversion. This depends on the second point, for if the defendant has not a good title, his possession is a conversion, or if not, the sale of the whole ship is a conversion. Cooper v. Chitty. Fourthly, Though no demand was made of the ship by the plaintiffs on the defendant, a demand in this case was not necessary." Having stated these points, he referred the court to the case of Heath v. Hubbard, to shew that the defendant had not complied with the registry acts so as to give him a good title. SCOTT, W. contrà, "First, there should have been a new assignment by the commissioners to the other assig I recedents of Assignments, vol. ii. 142.6 Ves. jun. 451. 6 Term Rep. 766. See also Addison v. Overend, 7 Term Rep. 279, |