1804. BLOXAM versus HUBBARD. acts relate only to transfers between buyers and sellers. Supposing therefore, that the plaintiffs are entitled to bring and Others their action, it remains to consider the question, whether the defendant has a good title to the ship? This depends on the provisions of the statute 7 and 8 W. III. c. 22; so far as respects the transfer of the entire property in a ship and so far as the same are applicable to the case ofa transfer when at sea or in her absence from her port. The statute 7 and 8 W. III. c. 22, s. 21, provides that no ship's name, registered, shall be changed without registring such ship de novo, which is thereby required to be done upon every transfer of property to another port, and delivering up the former certificate to be cancelled; and that "in case there be any alteration of property in the same port, by the sale of one or more shares in the ship after registring, such alteration shall be acknowledged by indorsement on the certificate of the register before two witnesses, in order to prove that the entire property in such ship remains to some of the subjects of England, in case any dispute arises concerning the same." Here is no pro vision that the indorsement is to be made on a partial sale in another port; for a new register is only to be made on the transfer to another port. The 36 Geo III. c. 60, s. 16, recites" the provisions of the said recited act, namely, the 7 and 8 W. III. c. 22, touching the indorsement on certificates of registry in case of any alteration of property in any ship or vessel in the same port, being found insufficient, and directs, that besides the indorsement required by the said recited act, there shall also be indorsed on the certificates of registry, before two witnesses, the town, place, or parish where all and every person and persons to whom the property in any ship or vessel, or any part thereof, shall be so transferred, shall reside." "And, the person or persons to whom the property of such ship or vessel shall be so transferred, or his or their agents, shall also deliver a copy of such indorsement to the persons authorized to make registry, who are to cause an entry thereof to be indorsed on the oath or affidavit upon which the original certificate of registry of 1804. BLOXAM and Others versus such ship or vessel was obtained, and shall also make a memorandum of the same in the book of registers. This clause then applies to the transfer of the property in a ship, or any part thereof. It has the effect of applying HUBBARD. the act 7 and 8 W. III. c. 21, to a transfer of the whole, or any part of a ship, and is therefore either a legislative exposition of that statute or an enlargement of it. The statute 34 Gen. III. c. 68, s. 15, which prescribes the form of the indorsement, recites that "whereas by the laws now in force, upon any alteration of property, in any ship or vessel in the same port to which such vessel belongs, an indorsement upon the certificate of registry is required to be made;'aud then enacts, ، that such indorsement shall be made in the form therein expressed, and shall be signed by the persons transferring the pro-. perty, and a copy of such indorsement shall be delivered to the person authorized to make registry, otherwise such sale shall be void, and he shall cause an entry to be indorsed on the oath on which the original certificate was obtained, and also make a memorandum in the book of registry," &c. This clause, therefore, considers the indorsement to be necessary on any transfer of property in the same port, and this act confirms the former provisions of the other acts, and prescribes the form of the indorsement. Now this indorsement, when in port, is put in opposition to the case of a sale when the ship is at sea; in which case the indorsement cannot be made on the register. For that purpose the 16th clause is introduced, which applies to a sale in such case, and provides that "if any ship shall be at sea, or absent from the port to which she belongs, at the time when such alteration in the property thereof shall be made as aforesaid, so that an indorsement cannot be made on the registry immediately, the sale or contract shall be made by bill of sale (as before directed), and within ten days after such ship shall return to her port, an indorsement shall be made and signed by the owners, and a copy thereof delivered in manner therein. before directed, otherwise such sale shall be void, and VOL. III. No. 22. 1804. BLOXAM versus HUBBARD. 66 entry thereof shall be indorsed and a memorandum thereof made in the manner before directed." The alteration and Others here mentioned, by reference to the preceding section, is any alteration of property; any alteration by which any property is transferred in a ship absent from her port. Otherwise this mischief might follow-the whole of a ship might be transferred to a foreigner, and if she did not change her port, he might be permitted to possess all the advantages and privileges of a British subject. But this cannot be if the bill of sale is to be made in form, and to be entered with the person making registers, and notice is to be given to the commissioners of the customs. And in Macneal's case (Reeve's History of Shipping, 504) Lord Camden, then president of the privy counsel, said that he thought that the stat. 26 Geo. III. was an act which in every view of it should be considered as a remedial act, it was for preventing a public mischief, to amend and alter the stat. 7 and 8 W. III. It had appeared that frauds without number were committed under that act, and that was stated to be the reason of making it." Thus collecting the intention as well as the terms of these acts, we are obliged to consider the statute 34 Geo. III. c. 68, s. 16, as applying to any alteration of property with respect to a ship at sea, or when absent from the port to which she belongs, and as applying also to any alteration of property, in such ship, whether the same be made by transfer of the whole, or of any share or shares. As such mode of proceeding as this clause of the statute directs has not been taken upon the sale to the defendant, we think that no interest has passed therein by such sale from the bankrupt; and that the plaintiffs are entitled to recover to the extent of three-fourth parts of the sum mentioned in the case. The whole amount in the verdict being thus altered, we di◄ rect THE POSTEA TO BE DELIVERED TO THE PLAINTIFF, POSTAN (executor) versus STANWAY (executor) June 6. The defendant, an executor, pleaded the general issue, the statute of limitations, and also, as to 15l. 15s. part of the plaintiff's demand, that the undertaking was made by the testator and one J. H. jointly, and this last plea was, upon issue joined, found for him; but on the other issues the plaintiff obtained a verdict: Held, that the plaintiff was entitled to full costs upon all the pleas. 1804. POSTAN versus STANWAY RULE to shew cause why the master should not review his taxation of costs, and allow the defendant (Executor) his costs on the issue found for him. The plaintiff had declared in assumpsit; the defendant pleaded three pleas, (Executor.) First, the general issue; secondly, the statute of limitations; and thirdly," as to 151. 13s. being for so much of the said promises in the declaration as relate to advertising an e tate to be sold; that the said promises in the declaration were made by the defendant's testator, and one John Hassels jointly, and not by the defendant's testator alone." The plaintiff joined issue on all the pleas. The jury found a verdict for the plaintiff on the plea of the general issue, and the plea of the statute of limitations; but at the same time found for the defendant on the third plea. ESPINASSE, for the plaintiff, shewed cause in Easter term last, and cited Norris v. Waldron,* Bridges v. Raymond,↑ Day v. Hanks,‡ Griffiths v. Davies,§ Butcher v. Green, and said that there was a distinction in all those cases. For there no issue, which went down to be tried 1804. POSTAN versus STANWAY c. 1. was found for the plaintiff; but, on the contrary, all that actually went down to be tried were found for the defen(Executor) dunt. He cited also 23 H. VIII. c. 15; and 6 Edward I. "If the plaintiff be nonsuited after appearance (Executor.) of the defendant, or any verdict pass against him, the defendant shall have his costs." He also cited Sir John Astley, Bart. v. Young.* WIGLEY, e contrà, cited Butcher v. Green,+ Brooke v. Willet, Dodd v. Joddrell,§ and contended that the defendant was entitled to have his costs taxed plea found for him. upon the Cur, adv. vult. And now, in this term, the opinion of the court was delivered, in effect, as follows, by 1 Lord ELLEN BOROUGH, C. J. After stating the case. "The question does not turn upon the stat. of 4 and 5 Anne, c. 16, for it is the same as if there was no double plea, and as if the defendant had pleaded, as to part, non assumpsit, and, as to the rest, had. pleaded any plea in bar, for instance a plea of tender. In such a case, which is the common one, there is not any instance of costs being allowed to the defendant, if the issue upon non assumpsit is found against him. The statute of Gloucaster 6 Ed. I. c. 1. gives costs only to the plaintiff in an assize, &c. The stat. 23 H. VIII. c. 15, gives costs in tresspass, debt, or covenant upon any specialty, or contract, detinue, account, and case, to the defendant, if the plaintiff is nonsuited, or there be any verdict against him; and by the 4 Jac. I. c. 3, the defendant shall have costs where the plaintiff would have had them. Many cases have been quoted, both in this court and the court of common pleas, in which the courts would not tax * 2 Burr. 1232. + Ut supra. 2 Term Rep. 235. |