be re

that in the mean time the said Defendants may strained by Injunction from disposing of, or parting with, the said Ship, or the said Certificate of Registry, and from making any Sale of the said Ship, or executing any Bill of Sale relating thereto."

An Injunction was obtained for want of an answer. Answers were afterwards put in. The Defendants, Leake and Bennett, admitting the facts stated in the Bill, and submitting to act as the Court should direct. The Defendant Parker answered separately; and admitting the facts stated in the bill, contended, that the Proceedings in the Court at Santander were void, that not being a proper Tribunal, and not having authority to decree a Sale of the Ship, unless for the purpose of being broken up; and that the repairs of the ship, according to the estimate of two experienced shipwrights, did not cost more than 40 l. and admitted he took possession of the Registry of the Ship to protect his property as owner; and that he had received no part of the money for which the ship sold, and that he was the owner of one half of the ship, and that he stood insured only to the amount of 500l. and that the underwriters refused to pay this insurance, insisting that the Sale was improper, and fraudulent; and insisted, that the Plaintiffs, being British subjects, had no right under the Sale, not having acted as prescribed by the Acts of Parliament, respecting the registry and transfer of property in British Ships (a); and that if the ship required so much as 200l. to be spent in repairs, as represented, it must have amounted to more than 15 s. for every ton, and therefore such ship must be deemed a Foreign Ship (b). (a) See 26 Geo. 3, c. 60, (b) See 26 Geo. 3, c. 60, s. 17, and 34 Geo. 3, c. 68,

S. 2.

1815.

THOMPSON and others

で。

LEAKE and

others.

1815.

THOMPSON and
others
v.

LEAKE and
others.

The cause came on upon the Bill and Answers.

Mr. Hart and Mr. Heald, for Plaintiffs.

Mr. Fonblanque and Mr. Cooke, for Defendant Parker.

Mr. Mascal, for the other Defendants.

The VICE-CHANCELLOR :

I have no doubts on this case; and shall therefore dispose of it immediately.

Independently of the Acts of Parliament, the Plaintiffs would be entitled to Relief, but we are here tied down by positive Acts of Parliament; and it would be repealing the Acts, by a Court of Equity, to give relief in this case. The words of the Act are quite clear. By the 34 Geo. III. c. 68, s. 14, it is enacted, "That no transfer, contract, or agreement for transfer of property in any ship or vessel, made or intended to be made after the 1st day of January 1795, shall be valid or effectual for any purpose whatsoever, either in law or equity, unless such Transfer, or Contract, or Agreement for transfer of Property in such Ship or Vessel, shall be made by Bill of Sale, or instrument in writing, containing such recital as is prescribed by the said Act."

In this case, the Transfer was by Contract, and not by the Judgment of the Court of Santander, such Court having no authority to decide, as was held in Reid v. Darby (c). No Bill of Sale was made in this case, containing such recital as is required by the Statute (d). The alluded to in the answer of Bennett was not a Bill paper

(c) 13 East, 145.

ย

(d) See 26 Gco. 3, c. 60, s. .17.

of Sale. A bill of sale is not in all cases necessary,
provided there be an Instrument in Writing (e); but here
it was a Sale by Auction, and there was no instrument in
writing. Bennett thought the sale by auction sufficient
to transfer the Property. But suppose there was an in-
strument in Writing, there has not been any Indorsement
of the Certificate of Registry as required by the Act (ƒ).
The Bill is founded on the doctrine, to which Lord Eldon
seemed to incline, in Mestaer v. Gillespie (g), viz. That
if the completion of the Contract is prevented by Fraud,
this Court will relieve; but this case differs much from
that. In that case, the contract was, in the first instance
valid, and the completion of it was prevented by pal-
pable fraud. Here the contract was, from the begin-
ning, incomplete. But even in cases of Fraud, it is
doubtful whether relief could be given. In Spelt v.
Lechmere (h), the Lord Chancellor, notwithstanding the
strong inclination of his opinion in Mestaer v. Gillespie,
speaks doubtfully of relief in cases of Fraud, but was
clear that in no other case he could give relief.
In cases
of accident and mistake, the Court, in various instances,
relieves; but will not in the case of a defective Title to a
Ship. The Act of Parliament destroys the contract
when not according to the prescribed forms; a man has
not, as in other cases, a Contract to stand upon. In
ex parte Yallock (i), Lord Eldon truly observes,
"The
Legislature will not be content with any other evidence
than the Registry, and requires the great variety of things
prescribed by the Acts. They go so far as to declare,
that notwithstanding any Transfer, any Sale, or any Con-
tract, if the purpose is not executed in the Mode and
Form prescribed by the Act, it shall be void to all intents

(e) See 34 Geo. 3, c. 68, s. 14.

(g) 11 Ves. 626.

(h) 13 Ves. 588.

1815.

THOMPSON and others

0.

LEAKE and

others.

1815.

THOMPSON and

others

0.

LEAKE and others.

and purposes." His Lordship has no where expressly decided, that relief could be given in these cases on the ground of Fraud. The opinion of the Master of the Rolls, as collected from what he said when called in to assist the Chancellor in Mestaer and Gillespie, appears to have been, that relief could not be given; and in a subsequent Case of Barker v. Chapman (k), where there was a gross fraud, by preventing the Ship's Register from being indorsed within the time prescribed by the Act of Parliament, after the return of the ship, His Honor the Master of the Rolls, with much reluctance, and after a year's delay of his judgment (in hopes the Parties would agree to a compromise), decided, he could not relieve. There was no Appeal from that Determination; it is, therefore, a considerable authority. It is the only express decision, that fraud is not in these cases relievable.

This, however, is not a Case of Fraud. It is, rather, a case of Mistake. There is no imputation on Bennett. The Certificate of the Registry was mislaid; and afterwards, without any design, delivered to Parker; nor was there any fraud in Parker, unless refusing to deliver up the Certificate is fraud, which, under the circumstances of the case, cannot be imputed. Here, therefore, there being no Bill of Sale, and Indorsement of the Certificate of Registry, it is impossible to relieve.

It is said, it is hard that Thompson, having paid his money, should not be entitled to the ship; but it was his own fault--he must be supposed to know the law of the country, and should have insisted on a complete Title before he paid his money.

4)3 March 1812.

Bill dismissed, but without Costs.

COTTON v. SCARANCKE.

ON a Petition in this Cause for payment of money out of Court, a Question arose upon the construction of a Settlement, made previous to the Marriage of Anne Parr, by which, in default of appointment by Anne Parr, a Limitation was made of personal property, "to the next of kin of the said Anne Parr of her own blood and family, as if she had died sole and unmarried." The Question was, Whether these words passed the property to the next of kin of the whole blood, in clusion of next of kin of the half blood?

The VICE-CHANCELLOR :

ex

This point is very clear. It is a question between the next of kin of the whole blood, and those of the half blood. This is a limitation of personal property, where whole and half blood are not distinguished. There is no mention of whole blood in the Deed. Those of the whole and half blood take together, as under the Statute of Distributions. The meaning of the Deed appears to have been, to exclude next of kin by marriage (a).

(a) See on this subject, Watt v. Watt, 3 Ves. 244.

and Bailey r. Wright, 18 Ves.
49.

1815.

5th August.

On a Limita

tion by Settlement "to the next of

kin of the said

Anne Parr of her own blood

and family, as if she had died sole and unmarried,” the next of kin take as under the Statute of Distributions.