^ 
 
 1 
 
 
 
 
 St4i| 
 
 
 
 A_
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
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 LAW BOOKS 
 
 l.MI'I.V J'l'lSI.ISIIKI) IIV 
 
 SAUNDERS AND BENNING, 
 
 (succKssoits 'JO .1. iii'ri'i'Rwoinii and son,) 
 
 4:\, l'I.i:i:T-STlUiET. 
 
 Tlic L \^V M Afi AZINT,; or QUAUTI'.IMA' UKVIKW of .IUIllSl'RUF)FA'Ci:, of wliirh T.n Num- 
 Ihts lia\-i' already appi-arcd. Aiiion^'st tlic I'oiitoiits arc, --Constitution arul I'ractirc of the ('utniiioii 
 La\k- Courts. --Principles and I'riuticc of I'li'aditiK. --Study of tlic Civil Law.--Clianccry llcforni.— Judi- 
 rial Systi'iu and rroirduri'of rraii(i>.--('odification.—Stiia- Trials. —Administration of .liistirc in India.-- 
 i'liursc of Study for Attomii's.— Livi-s of I'l-arne, Si-ldcn, Lords Hardwickc and Mansfield. --15roui:liain's 
 . Durliam Si)eeeli.--Speeinions of Scotch and Irish I'loijnuncc— Series of Articles on Mercantile Law, 
 Coiiveyancin!;, and Medical Jurispnidonce (to he continued). --Coimnon Law and Real I'roiM-rty Re- 
 ))nrts.--A great variety of practical Articles on Douhtful Questions.— Digests containing all the Cases 
 in all the Common Law, l^juity, ICcdesiastical, Privy Council, Insolvent arid llankruptcy Reports.— 
 Abstracts of all New St:itutes.— Legal News. --New Publications, &c. &c. 
 *»* No. 1 to (j, price 5.y. each ; and No. 7 to 10, price (It. each. (This work will he regularly continued.) 
 
 The LIFE of a L.WVVI^R, written hy himself. In I'imo. price 10*. Cxi. boards. 
 
 " There Is only ()«r<>tl»-i- .\\'riter in Dnr l.-inyiiai't^ «lio lias succeeded in a siinilur style, and it is no small praise to tlie 
 Anilinr to s.iy that lie n scnil)lc.« I)i' Foo. W'r have no donlit that there is a ron.iidcrablir niiinhir of readers who cannot 
 (.111 to be d^li^llt^•d wiili the Biiii|)lii:it.\ and originality of tliis piece of Uio'^rapliy, and who may be instructed by the 
 lessons of practical prudence it conveys." Timts. 
 
 A HISTORY of the Establishment and Residence of the JEWS IN ENGLAND; with an Enquiry 
 into their Civil Disabilities. By John Elijah Blunt, of Lincon's Inn, Est]. Barrister at Law. Price Cis. bds. 
 
 WEST INDIES--Substance of Three Reports of the Comniissioners of Inquirj- into the Administra- 
 tion of Civil and Criiuin;il Justice, with the Commissioners' Scheme of Improvement. In 8vo. price 14*. 
 
 PRACTICE AND PLEADING AT COMxMON LAW. 
 
 1. A SUPPLEMENT to the PRACTICE of the COURTS of KING'S BENCH and COMMON 
 I'LICAS, &c. containing idl the SUitutes, Rules of Courts, and Reported Cases on Practical Subjects, 
 since the Publication of the Ninth Edition, particularly the late Act for the more Elfectual Adininistra- 
 tiiHi of Justice in England and Wales, and also a Practical Treatise on tlie Tender of Money, and the 
 Law relating to Fees of Officers of the Courts, <S:c. with an Appendix, in which the whole of the Act is 
 gi\en, with corrected Marginal Abstracts, and References to the " J^ractice," and " Supplement," and 
 also a Table of the New Terms and Returns, and some Practical Forms, prepared by the Author, ap- 
 pli.able to different Clauses of the Act. By WiLMAiM Tiuu, Esq. Barrister at Law. In Royal 8vo. 
 Price 12s. boards. 
 
 2. The LAW of ATTORNIES, with Practical Directions in Actions, and Proceedings by and against 
 them, and for the Taxation and Recovery of Costs ; also the Law of Costs at Common Law, in Equity, 
 in Bankruptcy, and in Criminal Proceedings and Penal Actions. By John Meruiukld, Esq. Barrister 
 at Law. In 8vo. price 21s. boards. 
 
 X A TREATISE on the LAW of EVIDENCE. By S. M.PiiiLLiprs, Esq. Barrister at Law. The 
 Seventh Edition, with very considerable Alterations and Additions. In Two Vols. Royal 8vo. price 21. \Qs. 
 
 I. A TREATISE on the ACT 'J Geo. 4. c. 14., commonly called LORD TENTERDEN'S ACT, entitled 
 " .\n Act for rendering a written Memorandum necessary t^) the Validity' of certiiin Promises and En- 
 gagements." By S\MLKL Martin, Esq., of the Middle Temple, Barrister at Law. Price ih. boards. ' 
 
 .">. The PRACTICE of the COURTS of KING'S BENCH and CO.MMON PLEAS, in Personal 
 Actions ami Ejectment. To which are added, the Law and Practice of Extents ; and the Rules of Court 
 and modern Decisions, in the Exchequer of Pleas. By William Tidd, of the Inner Temple, Esq. Bar- 
 ri>teratLaw. The Ninth Editioiv, corrected, and consiilerably enlarged. In Two Vols. Royal 8vo. price 
 2'. 1 lv. boards. 
 
 <i. FORMS of PRACTICAL PROCEEDINGS in the COURTS of KING'S BENCH, COMMON 
 PLEAS, and EXCHEQUER of PLEAS. The Seventh Edition, corrected and considerably enlarged, 
 with References to the Ninth Edition of the Practice, to which they are intended as an Appendix. By 
 WiLiiAM Tinn, of thelnnei Temple, Esq. Barrister at Law. In lloyal 8vo. price 1/. (u. bfuirds. 
 
 7. A TREATISE on the LAW and PRACTICE of DEMURRER to Pleadings and Evidence; of' 
 Bills of Exceptions ; Wager of Law ; and Issue and Trial by the Record. As also the Law and I'racticc 
 as to Aiucudmciits; Motion in Arrest of Judgment; Judgmcut mn obstante ixrcdUto; and Judgment
 
 '2 Saunders uml Benniiuj (lute J. Butteru'orth and Son), 43, Fleet Street. 
 
 tjuod partts replticitrnt ; in pt'rbonal Artioiis. Willi C'djuous Precetlents from the most approved Forms. 
 Hy Ukorck BariL.w Manski., Ksij. of iho Miilclli'lViupli-, Spt^ i:il I'loadi-r. In 8\o. price l")v. boards. 
 
 8. .\ TKK.Vnst: on llu- rRlNClI'LKS of I'LICADINC in Cl\ 11. ACTIONS; comprisini? a Sum- 
 niitr>- \'io« of tlio whole rroiivdin.y.s in a Suit at Law. My llivin .loiiv Siiiili-.N, Serjeant at Law. 
 Thi- Sci-ond liilition, with Corrections and Imi)rovenient«i. In Svo. ))riie ISv. boards. 
 
 '.). A TRKATISi: of the LA^V concernini? the LIAIULITIKS and RIGIITS of COMMON CARRIERS 
 Hy CJeoih;k rur.ur.Ric k Ji>nks, of Lincoln's Inn, Esq. Barrister at Law. In 8vo. price Rs. boards. 
 
 U). The .\TH )RNEV and AOFATS NEW TABLE of COSTS in tlie Courts of King's Bench, Com- 
 mon I'leas, and I".xcl»equer of IMeas ; c(>ntainini; the Fees and Dishiirsenients for I'lainlilfand Dcfeiuhnit 
 in Actions an<l I'rocecdincs Civil and Criminal; also the Costs of \\ rlts of .V<i<<- J-'iicia.\ in the I'etty Bag 
 Office, to repeal Lettt-rs I'atent iind Writs of ntf quod iliniininn ; together M'ilh the Costs on Writs of 
 Erior in the Kinu's ISench, }'",xihe(iner Chamber, aiul Council Ch:init)er, and likewise of Writs of 
 Error and Appeals fn)ni the Courts of the United Kimrdom to the Mouse of Lords: to which are 
 added. Bills on ApiK>als U.» the I'rivy Council ; Costs in Bankruptcy and Lunacy; the Charges of Con- 
 veyanuinij ajul of Soliciting I'rivate Acts of I'arliament, Costs of IClection Petitions, tirants from the 
 Crown, Letters I'atent, and Charters. With a Tabic of the Conuucncement and Eiuling of the Terms of 
 %\\e last seventy Years, and other iiselul Matters. By John J'ai.'mi:ii, (Jcnt. The 'J\uth Edition ; cor- 
 rected, and greatly enlarged. In 4to. price 1/. 18.v. boards. 
 
 11. BILLS of CO.STS and ALLt)WANCES in the COURT of KINGS BENCH, according to the 
 present Scale of .Mlowance ^.') G. 4. c. 41.: ; with a I'rccedent for ,\tlidavits of Increase. The Fifth Edi- 
 tion. I'rice \s. boarrls. 
 
 12. Tlie LAW and PRACTICE of JUDGMENTS and EXECUTK »NS, including Exlc-nls at the suit 
 of the Crown. By Pkkiuwjink Bi.n(;iia.m, A. B. of the Middle Temple. In 8vo. price 14s. in boards. 
 
 l.i. A PRACTICAL TREATISE on the LA^V of BAIL, in an Action at Common Law. By Hi.uman 
 SriiRoDF.K, Esq. of the .Miildle Temple. Price 7f. t)<l. boards. 
 
 14. A PRACTICAL TREATISE on the LAW of BAIL in Cl\ IL and CRIMINAL PROCEED- 
 INGS. By CiiAULr.s I'ktkrsdorkf, Esy. In 8vo. price 1/. l.v. boards. 
 
 If). A PRACTICAL TRE.VTISE on the SETI'LING of EVIDENCE for TRIALS at NISI PRIUS. 
 and on the Preparing and .\rrangingthc necessary Proofs. By Isa^c Espinasse, Escj. Barrister at Law. 
 Tlic Second Edition, with very Considerable Adtlitions. Price 1.t.v. boards. 
 
 16. A TREATISE on the L.VW and PRACTICE of EXTENTS in Chief and in Aid; with an Ap- 
 pendix of Forms of Writs; .\ffidavits for Extents ; Pleadings to Extents; Rules of Court; and Tables 
 of Fees. By VLuw akd Wf.st, of the Inner Temple, Msq. Barrister at Law. In 8vo. price llv. boards. 
 
 17. A TREATISE of SUMMARY PROCEEDINGS under the LAWS of EXCISE. By Dami'l 
 How AHI), .Solicitor. In 8vo. price lO.v. boards. 
 
 18. SOLICITOR'S PRACTICE on the CROWN SIDE of the COl RT of KING'S BICNCH. By 
 W. Hands, hvo. price l'2v. 
 
 1<J. WENTWORTirs .1., COMPLETE SYSTI'.M t>F PLl'.ADINCJ, comprehending the most ap- 
 proved Precedents and Forms of Practice. 10 vols, royal 8vo. price M. boards. I7y7— iryj. 
 
 20. WILC(JCK'S (J. W.) LAW OF CORPORATIONS - On Municipal Corporations; con- 
 taining a Brief Sketch of their History, :ind a Treatise «m .Mand.imus and (juo Warranto. In 8^^). 
 price 18*. boards. 
 
 PRACTICE OF PARLIAMKNT, ELECTIONS, ETC. 
 
 1. A GENERAL TREATISE on .STATUTES, their Rules of Construction, and the proper Boun- 
 daries of Legislation and Judicial Interpret.ition, including a Summary of the Practice of Parliament, 
 and the Ancient and .Modern Method (»f Proceeding in Passing Bills of every kind; with an Api)enili\ 
 of Precedents, Forrn.s, Rules, and Orders. By Foriunatls Dwauuis, Es(|. Barrister at Law. In 
 8vo. price 1/. 1«. boards. 
 
 2. 'Hie PR \CTICE in the HOUSE OF LORDS on APPEALS, WRITS of ERROR, and CLAI.MS 
 of PEERAGE, with a ComiK'nditm.'* .Account of Dignities ; to which is prefixed, .\n INTRODUCTOIO 
 HLSTORICAL E.SSAV on the APPELLATE JURISDICTION. By John Palmkr, of Gray's Inn, 
 Gent. Price 11«. Iioanls. 
 
 3. A TREATlSi: on the LAW of the PREROGATIVE of the CROWN, and the relative Duties and 
 Rights of the Sidyect. By .Ioski-ii Cmr tv, .lim. of the Middle Temple, I'sq. Price I/. I.«. boards. 
 
 4. A TREATISE on the ORIGIN and NATCREof DHiNiriES or TITLES of HONOR ; containing 
 all the Ca.Hcs of Peerage, togr-ther with the Mode of Proceeding in Cl.iiins of this kind. By Wil.MAM 
 Cruisf., Esq. Barrister nt Law. The .Second l^dition. Price ll.«. boards. 
 
 5. A TREATISE on the PRACTICE and PROCEEDINGS in PARLIAMFAT ; the Passing of Public 
 and Private Bills ; the Construction of Statutes; and the Law of Election. By ANTHONY HamMOND, 
 of the Inner Temple, E.sq. In 8vo. prioc 5*. boards. ,
 
 Saunders and Ihniunfj (late ./. Bullerwurth anil Son), 4.3, Fleet Street. 3 
 
 r.. The l'AUIJ.\Mi:\T.\llV SOLlClTOirS ASSISTANT; r.mt.iinini; a Selection of Hills of ContK, 
 oil Appeals ami Writs of ICrnir in llie Mouse of Lords, and llie Staiidint; Orders of the Hfnise of LordK, 
 and the I'ees ol' liutli lloii.si-s on i)assinn i'rivale Mills. J$y .1. rAi.Mi;n, (mwiI. In (piart/), price 7.». (id. 
 buiirds. 
 
 7. A DUJI'ST of ihe LA\V of ELI'.CTKJNS ; conlainini; the I'roctedinf^s at JClcctions for all placea in 
 )]ni;laiid, Ireland, and Scotland, with the iiiialilieatioiiH of Voti^rs for the respective Countries, and an 
 Appendix of I'eiuillies to which Returning and otiier UUiccrs are liable. By Damki. Lisiku, Solicitor. 
 In 8vo. price 7s. hoards. 
 
 5. ATIIKATISI'. ..n the LAW and PKACTICF. of F.LIXTIONS. IJy ArtiiiLK Mali;, AI.A. I5ar- 
 ri.sier at Law. Second I'.dition, with Corrections and Additions, in 8vo. ijrice U. 4s. in boards. 
 
 y. The KOSCOMMON CLAIM of PHKRAGI-:, containinj,' the Speeches delivered before the Lordb* 
 Coniinittee of I'rivilejjfes with tlic Decisions of the House of Lords tliercon. By .J. Sydnkv Tavlob, 
 A.^L In 8vo. i)rice 7.V. ^i'/. l)oar(Is. 
 
 Jicpurls — Election Cases. 
 
 1. UI'l'ORTS upon controverted Election.s. By A. LuOKR. Tiirec Vols, price II. I'J.v. 
 
 2. RKl'ORTS of CASLS of controverted IClcctions, in the Second Parliament of the United Kingdom, 
 b<>gun and holden .'51st . August, 1802, dissolved 2Uh Oct. IHWj. By R. H. Pj:ck\vf,LI,. Two Vols, price 
 1/. l(i.«. boards. 
 
 X A REPORT of the CASE of the COUNTV of DUBLIN ELECTION, before a Committee of the 
 House of Commons, March 1827. With Notes. By Ja.mes Esiinasse, Esq. of Gray's Inn, Bar- 
 rister at Law. In 8vo. price 4.v. 
 
 SESSIONS AND PARISH LAW. 
 
 I. I'.MIISH L.\W ; beinp: a Dijrcst of the Law relating to Parishes, Churches and Chapels; Parish 
 Registers ; Ministers of Churches and Chapels ; Vestries and Parish Meetings j Churchwardens, Parish 
 Clerks, Sextons and Beadles ; Dissenters ; Higliways ; Parish and County Rates ; Watching and 
 Lighting Parislies ; Weights and Measures; Disorderly Houses; Militia and Jury Lists ; Justices of 
 the Peace, Constables, Watchmen, &c. ; Vagrants, Lunatics, Overseers, Guardians, &c. &c. ; and the 
 Relief, Settlement and Removal of the Poor. By John Steer, Esq. Barrister at Law. In 8vo. price 
 1/. l.v. boards. {Just published.) 
 
 •2. A TREATISE on the LAW of WATERS and of SEWERS ; including the Law relating to Rights 
 in the Sea, and Rights in Rivers, Canals, Dock Companies, Fisheries, Mills, Water-courses, <S;c. By 
 Hl'.mpiiuy W. Wooluvch, of the Inner Temple, Barrister at Law, Author of " The Law of Rights of 
 Common," and of " The Law of Ways." In 8vo. price Ifo. boards. [Just published.) 
 
 ;{. The JUSTICE of the PEACE, and jPARISH OFFICER. By Ricuakd Bl un, LL.D. late Chan- 
 cellor of the Diocese of Carlisle. Corrected and improved by Sir George Chetwvnd, Bart. Barrister 
 at Law. The Twenty-fifth Edition ; with Corrections, and Additions ; the Cases brought down to the 
 end of Trinity Term, 10 Geo. IV. 182;), and the Statutes to the end of 10 Geo. 4. 1829. Bv George 
 Wharton Maruiot, Esq. Barrister at Law, late of the Midland Circuit, now one of the Police Mafiis- 
 tratcs. Queen Square, ^^'estminster. In Five large \'ols. 8vo. price 4/. 4,v. boards. 
 
 4. A TREATISE on the LAW of WA'^S ; including Highways, Turnpike Roads and Tolls, Private 
 Rights of Way, Bridges and Ferries. By H. ^V. Wooluvch, Esq., Barrister at Law. Price 1&. boards. 
 
 h. A TREATISE on the LAWS for the R1:LIEF and SE'lTLEMENT of the POOR. By Mich.vel 
 Noi.AS, Esq. Barrister at Law. The Fourth Edition. In Three Vols, price 21. bs. boards. 
 
 6. A DIGEST of the L.\WS relating to the P( )OR, containing the Sututes and Cases to the 5th Geo. 4, 
 1824. inclusive. Bv J. Stamford CAI.D^^ ell, Esq. Barrister at Law. Price \\s. 
 
 7. The LAW relating to the ORDERING and SE'FrLEMENT of PARISH POOR. By J. W. Will- 
 cock, Es(i. Barrister at Law. In 8vo. price 18«. boards. 
 
 8. A SU.MMARV of tiie LAWS relating to the Government and Maint<?nance of the Poor. By Sir 
 Gre<;<)RV .\. Lewis, of the Middle Temple, Barrister at Law. Price 14v. boards. 
 
 ;». The LAMS RELATING to the POOR, including the Collections originally made by E.Bott, Esq. 
 and afterwards edited by F. Const, Esq. The Sixth Edition, in which the Statutes and Cases to Hilary 
 Term 1827, are arranged imder their respective heads ; and the whole System of the Poor Laws is placet} 
 in a clear and perspicuous point of view. By J. T. Pratt, Esq. Barrister at .Law. In Two Vols. Svo. 
 price 21. 8.«. boards. 
 
 10. A PRACTICAL GUIDE to the DUTY and AUTHORITY of OVERSEERS of the POOR, with 
 full and plain Directions to thcni in the Execution of their Office ; with numerous Precedents of Sum- 
 monses, Warrants, Orders, &c. and the Statutes to the 2 G. 4. inclusive. Second Edition. By Willia.m 
 TooNE, .\ttorney at Law. In Svo. price &-. boards. 
 
 11. The FIVE ACTS called Mn. PEEL'S ACTS (7 & 8 Geo. 4. c.27, 23, 29, 30, 3L), reduced to distinct 
 Heads, and adapted to the arrangement of the 24th Edition of Burn's Justice ; pointing out the .Mteration.i 
 made by those Acts, and the present Slate of the Law, By Isaac EsriN asje, Esq. In Svo. price 5>. boards.
 
 '} Saunders and Brnninfj (late J. IhittrrirortJi and Son), -13, Fleet Street. 
 
 \2. Tlu- LAW r.lalivi- t..t(»MMIT\IKNTS;m.U(l\\ llTIONS l.y JUSTICES ofll.i- ITArr., « 1th 
 I'orms. H\ John rKi:i>i:iiu k Akc iiiioi.n, l',.si|. MurrisU r at Law. l.iino. priiv 1 l.v. (w/. luMirils. 
 
 IX A SUMMARY of tl.oOrriC'Kimd ALTllOlUTVof a.lUSTIlF.of llio I'KACHoMlof SF.SSIONS. 
 i;I)0(li(aU'il by iHTniissitm to tlu- liidil lloii. luibirt IVil. I!\ Juiis Tidd I'liv ri , id" tlio limcr 'IVini'li', 
 Esq. HaiiistiT at Law. In 12m(>. i)ri(i-Rt. 
 
 U. A SUMMARV of tlu- l)i;Tir:S of a .lUSTirr: of tin- rilACK on; of sr.SSlONS, uitli sonu- Tiv- 
 liiniiinry < tb.s<-ivaUi>ns. My IIknkv ,1 ami'.s l'\ r., I*s(|. Tlu- Fmirtli lulition, with coiisidciabli' .Additions, 
 iniludini; tin.- lali- Stalutos pa.ssk.'d for inii>rovin,i,' tlio .\ilniiiii>lratii>i> of (.'riniinal .liistiit" in linpland. 
 J'rico !K. 
 
 l.'>. The I\tAf;[STRATI-:S' Rr.GLSTF.R, or niU-d .Unirnal ; to keep a cormt Aicount of the CastH 
 hi-ard and <li't»'iniinod l)y Mairistruti'S at tlioir Ilonsi-s; with an Ai)hahi'tifal Index, roforring to tlic 
 NomjIhts and Nanu*^ of Cases, so as to form a useful Abstract of llie nioie tietailed IJusiness at u I'etty 
 Session. I'rice «fv. half-bound. 
 
 Hi. F(»RMULARIi:S: or, the ^^\^ISTRATK•S ASSISTANT; beins a Odleetion of Forms whieh 
 occur in the daily I'raeliee and Duties of a .Justice of tlie I'eace out of Sessions. ByAVii.LiAM Robi.nson, 
 Ks<i. LL.D. of the .Middle Teniide. In Two X'ols. price. 1/. Kir. boards. 
 
 17. The MAGI.STRATF/S .MANUAL; or a Summary of the Duties and Powers of a .histice of the 
 Fcjicc, carefully compiled from the be.^t Authorities, with I'xtract.s from adjudced Cases, and the Stattite^ 
 to the " (S: 8 G. IV. 1S27 ; iiuluding a Copious Collection of I'reeedents of Summonses, AN'arrants, Con- 
 victions, \c. The F'ourth F.dition, with considerable .Additions. Hy \Vii.i.i aaj Toonk, .'\ltt)rney at Law, 
 (late) Clerk to the Magistrates acting- for the Division of Nov Hrentford, Middlesex. In 8vo. 1/. 1^. bds. 
 
 18. LAWS relating to INNS, IKVrKLS, TAVFRNS, ALEIK )USi:s, and Places of Public' F.ntertain- 
 ment ; and IK HISFS and CARRlAGi:S let for Hire. P.y J. W. Wi i.lcock. Price av. boards. 
 
 I'J. The OFFICE of CONSTARLF; contiiuinu' the Laws relatinp; to the (IRice of 111^11, Petty, and 
 Sp<-cial Constables, Ileadborouchs, l'(>i-.sholdei-s, Titliingiuen, and \\'atcbmen, Mith an Account of their 
 Institution and .Appointment ; Direitions for their Conduct, and the Law relative to their Protection in 
 tlio.se Cases where they h.ive, througli Error, exceeded their Authority. Hy J. A\ . Wii i.cocK, V.sn. 
 I'larrister at L.iw. In Svo. price 7*. boards. 
 
 ■JO. \ (;fnkrali)1Iu:ct(>rv toaii the counties, hundreds, ridings, wapf.ntakes, 
 
 DIVISIONS.CITII.S, RORttl (ills, Lir.F.RTIES, PARISHES, Ti >\\ NSHIl'S, HAIMI.ETS, TITH- 
 IN(;S, PltEClNCTS, CllAI'I'.LKIF.S, ^c. \c. in EN(.'L\M); with the Populatiim and Areas of the 
 si'veral Ci'nnliesalph.ibetically arranged ; compileil from ( )Hicial Docunu-nls and other .Authentic Sources ; 
 and intended for the Use of Sheritfs, Treasurers of Counties, .lustices of the Peace, Churchwardens, < )ver- 
 seers of the Poor, Vestry Clerks, and others, connected with either County or Parish .Affairs : and )>:ir- 
 ticularly cileulated to ensure correct Proceediniis respectinc; the Kemo\'al of the Poor. |{y Thomas 
 W'liif.i.ii'.iJ, \ estry Cli'rk of the Parish of Portsea, Hants. Price Vis. 
 
 21. SAVINCiS HANKS ACT, !l Geo. IV. I'ourth Edition, with Notes and a Copious Index. Py ,1. T. 
 Pit ATI, I'.sq. Karrisler .it L:vw (who prepared the HillV Price l\. 
 
 22. TIk; law relatJuR to I'RH'.NDLV SOCllVriES in ENCJLAND and WALI'.S; comprising the 
 Sututes :i;5Geo.;{. c.'.l.; Xi Geo. .<. c. 111.; .w; (Jeo. X c. yO. ; iKUJeo. X c. 111.; lyGeo. X c. 12:). 
 W2 Geo. :\. c. 1.">H. ; .'v Geo. X c. .W. ; .">J» Geo. X c. 12H. ; (i (Jeo. 4. c. 7 1. ; with the Cases decided on each at 
 Law and in Eijuily. Hy John Tidd Piiatt, I'si). llarrister at F^aw. To which is added, the New Act 
 Kl Geo. I. c. .Vi. Price '.ii. boards. 
 
 2:1. A TREATISE on the INTERN \L RF.GULATlnNS of FRIl'.NDLV SOCIETIES, shewinc tlie 
 various I'xistini; Evils, and I'racfic.il Remedies, and l'x)iounding the Doctrine of Restitution ; also a 
 Code of Rules, witli I'orms, for the use of .Magistrates in Questiiuis relatini? to such Societies; in 
 Mliich is eiven all the Material Decided Ca.ses in Law ami I'nuity. Hy .1 \Mr.s WiiiiiiiT. To which is 
 nufied, the New Act, lOGeo. I. c. .'i*!., and an .Appeal to Lord .1. Russell, M.J', on the Present StJite of the 
 L.iw relatinit to such Societies, with Practical SuL'uestion.i of Improvement : with a Copious Index. 12mo. 
 price •». Iwiards. 
 
 '21. The LAW of HAWKERS and PEDLARS; with the adjudaed Cases aiul numerous Precedents: 
 also the Law re.-poctine (Juests at Inns, and of Proceeding's auainst the Hundred in Cases of Hifchway 
 Rolibery. Bv a CorNT\ M<«;isTit \tf.. In I2mo. ]irice .'U. (!'/. l>oards. 
 
 2... I'RECEDENTS of PROCEEDINCJS on the VEOMANRV CAVALRY ACT before JUSTICES 
 of the PE.ACE, A.C. with some Ollur^. I'.y a CoiM^ .M Miisi li \i r.. In Hvo. price ."u. boards. 
 
 2*1. LAWSof GAMINti, W\(;r,i;, llni;si;-RA( INC. .md GAM INtMIOUSES. J5y J.1)ism:v. 
 Price .'n. 
 
 27. SUMMARY of the LAW on PEN \L < ON\|( TK »NS. P.y J.Nahf.s. Price (>.. Wirds. 
 
 2S. TRE VriSE on the OFFICE of P.AILIFF of a LIRERTY. My J. Rnsov. Price is. bojirds. 
 
 21. An ENQUIRY into the PRESENT STATE of the L\WS relating to GAME ; with Observations 
 upon t!uPolii\ of thofc Liius. iiud Sn.:ecstions for their .Auundment. My a Marrister. 2t, (if/, sewed.
 
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 TREATISE 
 
 ON 
 
 THE MORTGAGE OF SHIPS, 
 
 airvrteil liy llio 
 
 utQmvv! ^ttsi; 
 
 ON THE PROPER MODE OF EFFECTING MORTGAGES 
 ON PROPERTY OF THIS NATURE; 
 
 ON THE LIABILITIES OF THE MORTGAGEE. 
 
 BY 
 
 THOMAS ANTHONY TROLLOPE, 
 
 OF THE MIDDLE TEMPLE, ESQ. DAHniSTEB AT LAW. 
 
 LONDON : 
 
 PRINTED FOR JOSEPH BUTTERWORTH AND SON, 
 
 LAW-BOOKSELLERS, 4.'5, FLEET-STREET; 
 
 AND J. COOKE, ORMOND-QUAY, DUBLIN. 
 
 1823.
 
 T 
 
 T. Rogers, Printer, llrd-Lion-Strcil, Clcrkinwcll, Loudon.
 
 \fl 
 
 
 TO 
 
 TIIL lU(JnT IIONOI llAHLi: 
 
 THE EARL OF LIV ERPOOL, 
 
 FIRST LORD OF HIS MAJESTY'S TREASURY, 
 
 PRESIDENT 
 
 SOCIIVrV OF SHIP-OWNERS, 
 
 S)C. S)'c. Sfc. 
 
 niE FOLLOW I. NT, 
 
 THE A T I S E 
 
 IS, 
 
 WITH IIIS LORDSHIP'S PERMISSION, 
 
 RESrECTFULLY DEDICA lED. 
 
 783150
 
 CONTENTS. 
 
 Page 
 
 Preface i 
 
 Introduction xv 
 
 CHAP. I. 
 
 Of the Registry Acts ; viz. 1 dc ii Will. 3. chap. 22 ; and 
 2G Gee. :J. chap. GO, and 34 Geo. 3. chap. Gii, com- 
 monly called Lord Liverpool's Acts 1 
 
 CHAP. II. 
 
 Of tlie Effect of the Registry Acts upon Mortgages of 
 !<hips ; and particularly upon the Equity of Redemption 27 
 
 CHAP. III. 
 
 Of the Eflect of the Registry Acts upon the Interest of 
 Creditors in Rankruptcy ; and of the Slat. 2lJac. 1. 
 chap. 19. :J7 
 
 CHAP. IV. 
 
 Ot the Distinction between Titles arising Uy the xVcts of 
 Parties, or merely by Operation of Law 32
 
 ( ON rr.NTs. 
 
 Page 
 
 (11 \IV \ . 
 
 ()ttli( I'.v iiU lUf alVoidi (I li\ the lloijisttM ol' tlif liiteiist 
 w liicli l*artirs may havf in a Sliip ({(; 
 
 CHAP. VI. 
 
 Ot llif \ alidity ol" a Mortgage of a Ship, as afl'octod by 
 the 14th Sect, of 34 Geo. 3. chap. MH, or by the Policy 
 of the Registry Acts tu» 
 
 CHAP. VII. 
 
 Of the Liability of a Mortgagee of a Sliip, for the Ilepairs 
 or Supplies furnished for the Use of the Vessel 101 
 
 CHAl*. VIM. 
 
 Of the Manner in \vhich the Mortgage of a Sliip may be 
 best eflectcd 131 
 
 Index 141
 
 PREFACE. 
 
 The few following- observations have been made, 
 and are now offered to the public, in conse- 
 quence of the different opinions ^vhich have pre- 
 vailed in the profession, upon a point of very 
 considerable importance ; — not only, in its ge- 
 neral nature, but particularly, as aflfecting the 
 mercantile interests of the country. 
 
 There can be no doubt but that ships, or 
 whatever interest a party might have in them, 
 might, by the common law, be the subject of a 
 pledge, or security by way of mortgage, for a 
 loan of money, in the same manner as any other 
 personal property : and it is equally clear, that 
 ever since the passing of the 7th and 8th of King 
 William the Third, and the other statutes that 
 
 b
 
 11 PKr.rA( r.. 
 
 liave sinre ])ccn enacted i)y tlie lei;islalure, for 
 the regulation and better eneoiiragement of 
 shipping and navigation, up to the period of 
 the statutes of the late King, commonly known 
 by the name of I^ord Liverpool's acts ; — viz. the 
 26th Geo. 3. chap. (JO, and the .34t]i Geo. 3. 
 chap. (>8 ; — not only tlial in point of practice, 
 and perhaps of daily oceurrenee, siiips, and every 
 disposeable interest in them, have been made the 
 subject of mortgages; but that no doubt, up to 
 this last-mentioned period, has ever been sug- 
 gested in any of the numerous cases that have 
 occurred upon tiiis matter, either at law or in 
 equity, on the validity of such securities. 
 
 Since however the passing of these late acts 
 of Parliament it has frequently been contended, 
 that there can be no valid mortgage of a ship; 
 and although it is admitted, that sucli securities 
 may now be continually resorted to in practice ; 
 yet it is said that they rest merely upon the 
 honour of the mortgagee ; who, provided the 
 legal estate is duly vested in him, according to 
 the forms prescribed by the acts, may refuse to
 
 I'RRFACn. Ill 
 
 f^ive up tlio possession of tlic ship, upon tender, 
 in the usual way, of his |)rincij)al money, inte- 
 rest, and costs ; and tliat a court of equity is 
 disarmed of all its usual powers of compelling- 
 a redemption in such case. 
 
 That the alienation of property of every de- 
 scription, and in every manner, should be per- 
 fectly free and unrestrained, has always been a 
 favourite maxim of the law in this country; and 
 if it shall be found that these acts of Parliament 
 have really the effect of depriving the owners of 
 property of this nature, of the power of raising 
 money upon it, or of offering it as an effectual 
 security for an existing debt ; it will not only 
 break in upon this maxim, as far as it relates to 
 a very frequent and important mode of ti*ansfer, 
 but the consequences to commerce must be most 
 inconvenient, and highly detrimental. 
 
 That there is nothing in either of these acts 
 of Parliament, directly taking away from a party 
 having the possession of, or property in, a ship, 
 the right of transferring that property to ano- 
 
 b2
 
 IV PRF.rAcr.. 
 
 ther by \vay of niorttia^e, or tliat, c.v ?icccssitaic, 
 c^epri^es the Court of C'lianct'iy of its po\\er of 
 decreeing a redemption upon tlic payment of 
 ^vhat may be found to be due up(jn a security of 
 this nature, is evident. Had, indeed, any such 
 direct enactment existed, the present question 
 as to the validity of a mortgage, of course, would 
 not have arisen ; and whatever might have been 
 thought of the prudence or wisdom of the legis- 
 lature in passing sucli an act, tlie consequences 
 and effect of it would at least have remained 
 unquestioned in these sheets. 
 
 It is said, howev(>r, that llic right of mort- 
 gaging a ship, or any interest therein, or rather 
 the power of redeeming such property, after it 
 may have been legally transferred to another, 
 as a security only for a del)t or loan of money, 
 although not absolutely taken away by any di- 
 rect words contained in cither of thtvse acts of 
 Parliament, yet is as effectually removed or de- 
 stroyed, as if a clause had bc( n introduced in 
 them expressly to that effect.
 
 !• i{ i: I A ( i: . V 
 
 Those \>lio contend for tlie udiiinativc* of this 
 propo!>ition iiinintain, cithrr that it arises as a 
 certaiji and miavoidable consequence of some or 
 one of the hist of the; rej^istry acts, viz. the 
 34th Geo. .'i. c. (>H ; or, that the disposition of a 
 ship by way of mortgage, is quite inconsistent 
 with the general spirit of both these acts of Par- 
 liament ; ^vliich, hem^ in pari materia, are to be 
 taken together, and considered as one act of 
 the legislature. If, indeed, either of these no- 
 tions are well founded; — if it be true, in fact, 
 that any enactment is contained in these acts, 
 or either of them, that cannot be fully carried 
 into execution, without having the effect of 
 overturning, as a necessary consequence, all the 
 law previously existing in relation to the re- 
 demption of ships assigned by way of mortgage; 
 or if it be clearly and manifestly evident, that 
 such mortgages are totally inconsistent and at 
 variance, if not with the letter, yet with the 
 general tenor and spirit of these acts, and Avith 
 the intention and view of the legislature in pass- 
 ing them, it may be admitted, however repug- 
 nant such a notion may be to the long-acknow-
 
 V rHlll .\( K. 
 
 ledged rules aiul maxims lolating to the aliena- 
 tion of property, and however inconvenient and 
 injurious the consequences of such a doctrine 
 must be in a commercial point of view, that no 
 transfer of a ship, or of any interest therein, by 
 way of mortgage, can any longer have any vali- 
 dity as such, but must be considered as an abso- 
 lute assignment of the property, without any 
 power of redemption continuing in the original 
 owner. 
 
 It cannot but be seen, however, how chmger- 
 ous it always is, to depart from the plain and 
 direct language that has been used in an act of 
 Parliament, and to give an interpretation to any 
 clause, not arising from the express w ords con- 
 tained in it, but rather from what is supposed 
 to be the meaning and intention of the legisla- 
 ture. At least, before such an interpretation 
 can be relied upon, tluit intention ouglit to be 
 so plain and manifest upon the face of the whole 
 act, that no judicial doubt can exist respecting 
 it. The very existence of such a doubt, shews 
 the ])ossibility, at least, that sueli an interpre-
 
 I'KKl Aci:. Mi 
 
 tation is not consistent with the intention of the 
 Icg^ishiture ; and every reason, therefore, for 
 adopting- it, immediately falls to the ground. 
 That this has not been universally received as 
 the true interpretation of the acts now under 
 consideration, is evident from what has fallen 
 from Sir Thomas Plumer, the present Master of 
 the Rolls, in a most elaborate judgment upon 
 a case which, a few years since, came before 
 him when Vice Chancellor ; and which we shall 
 have occasion to examine more at length in the 
 course of the following observations.* He there 
 particularly declares it to be his opinion, that 
 there is nothing in the reason, the letter, or the 
 spirit, of these acts, which prevents a mortgage 
 being made of a ship, provided the proper forms 
 are observed ; and that the mortgage of a ship 
 is just as good as the mortgage of any other 
 chattel. He afterwards observes, that these acts 
 decide nothing between two parties, who had 
 obeyed the forms required by them ; and the 
 Court must abdicate its power, were it not to 
 
 ♦Thompson V.Smith. 1 Macld. 'SOo.
 
 viii }'nr.r\( K. 
 
 prevent tlu- (Iffcndaiits in tliat case, -tlic as- 
 signees of the mort2,agee, ^\\\o had Ixconie a 
 bankrupt, — from (l<)in<>- an act which must be 
 fatal to tlie phiintit^', tlie mortgagor. 
 
 More than suflicicnt has been stated to shew, 
 that Sir Thomas Phnncr was decidedly of opi- 
 nion, that neither tlie spirit, nor what has been 
 called the policy, of the registry acts, has de- 
 manded so great a sacrifice to be made to them, 
 as the giving up one of the most important 
 branches of our equitable jurisdiction. Much is 
 due to the authority of this learned Judge : 
 others, however, seem to have come to a con- 
 clusion very different from that of the Master of 
 the TloUs ; and so much has fallen from another 
 quarter in confirmation of this last opinion, — from 
 one, indeed, who, both from Iiis eminent know- 
 ledge in all matters, as well apiKrtaining to law 
 as to equity, and from tlic great length of time 
 he has filled tlic liighcst judicial situation in this 
 country, necessarily demands oiirdcc|)cst atten- 
 tion and consideration ; and whose oj»iiiions, 
 judicially <\j)rcsscd. have every sancti<Mi short
 
 PRF.rACi:. ix 
 
 of his own decrees; that uc cannot consider the 
 question, with respect to the policy of the regis- 
 try acts, as decided hy the foregoing judgment 
 of the Master of the Uolls, 
 
 No case, it is helieved, has ever yet occurred 
 in the courts of equity, calling for an express 
 decision, whether an interest in a ship may be 
 made over to another hy May of mortgage, \vith 
 the usual power of redemption continuing in the 
 mortgagee ; it is only, therefore, from what has 
 occasionally been stated by the Lord Chancellor, 
 in the different cases that have come before him 
 wherein this question has incidentally arisen, 
 that we can form any opinion of his Lordship's 
 impression upon it. 
 
 In the mean time, we cannot but think, that 
 whenever it may become necessary to decide so 
 important a point, as Avhether a party, in the 
 legal possession of a ship assigned to him by 
 way of mortgage, can be permitted, in a court 
 of equity, to say to the mortgagor, It is true, 
 tlie assiiinmciit was intcndj^d between us, nut as
 
 an ahsolutc pmcliasc, Ixit as a security only for 
 I'lOOO; — such I admit llic contract to have been; 
 l)iit I w \\\ now contiinu' to hold tlic shij), al- 
 tlion-Ii it may i)c of the \alne of £10,000, in 
 tlircct opposiiion to the terms of such contract, 
 and iVcc iVom c\ cry rinht or claim of redemp- 
 tion yon ma\ Iv.w i- in tlic j)roperty. — Whenever 
 the Court sliall ha\c to decide this important 
 question, and sncli a naked and bold proposi- 
 tion as this shall be attemj)ted to be supported 
 on the alledged spirit or policy of the registry 
 acts, it A\ill at least l)e worthy of observation, 
 tliat we ha\e it recorded, as the decided, and 
 most deliberate, opinion of one of our Judges, 
 tluit such an interpretation is directly at vari- 
 ance \vith the acts themselves, before a fraud of 
 this nature shall become openly triumj)hant, ami 
 sliall be enabled to be practised witli impunity, 
 through the nu'ans wliich the leu:islature itself 
 has all'orded. 
 
 In the follow inn >]\nv\ jrcafiscon this subject, 
 it w dl he endeax onred, —
 
 First, to [)()int out ^vluMlC•e the doul>t as to tlio 
 viilidity of a mortgage upon sliips, whether well 
 or ill founded, has arisen: 
 
 Secondly, to take a view of the different cases 
 that have occurred, as well in our courts of law, 
 as in equity, in which this subject has been in- 
 cidentally touched upon, or called for, or at- 
 tracted the notice of, the bench : 
 
 And, thirdly, to offer a few observations upon 
 the spirit or policy of the registry acts ; so far, 
 at least, as may be necessary for assisting the 
 inquiry, whether that most beneficial branch of 
 our equitable jurisdiction, under which the re- 
 demption of mortgages has hitherto been regu- 
 lated, must now, as far as relates to property in 
 ships, be deemed to be taken away and de- 
 stroyed, as inconsistent with, or repugnant to, 
 this policy. 
 
 It would have been too great a presumption 
 in the person offering these observations, to ima- 
 gine that any thing here stated by him could
 
 MI I'KKl A(K. 
 
 liuM' any U'lidcuc'v lo rciultr tlit* law upon this 
 important (piestion more ((.rtaiii than it is, or to 
 remove any of the {h>nl)ts now existing respect- 
 in:; it. Ilis ohjrct, inch-eil, will only be, to ex- 
 amine and state the natmc of these doubts, and 
 the j;rounds t)n which they ai)pear to rest. As 
 mortjjjaij^es, howe\er, are continually effected on 
 ships, notwithstanding tlie present uncertainty 
 of the law respecting them, if not as a [)ledge 
 for loans of money adxanced at the time of mak- 
 ing such mortgages, yet as a security for exist- 
 ing debts, a few remarks are intended to be 
 added, — 
 
 First, as to the liability of the mortgagee for 
 the repairs or supplies furnished for the use of 
 the ship : and, — 
 
 Secondly, as to t!ie Ixst maimer of creating 
 mortgages, so as to carry into execution the 
 object and intention of both j>arties; namely, to 
 afford as full and \ali(l a se( iirily to liini who is 
 ad\ Miicin'j: hisnioncv. as I he nal nre oft he jdedge 
 \mII ;nhni! : ;iii(!, ;it tlic -;iii r lin)e to pi«^serve
 
 vnv.iwcr.. xiii 
 
 to the party giviiip^ this security (as far as may 
 now ])e done), the power of redeeming his pro- 
 perty, upon the payment of the money so ad- 
 vanced, together with interest, and any costs or 
 expences that may have been incurred in reco- 
 vering such payment.
 
 INTRODUCTION. 
 
 It bath been laid down as a general proposition, 
 that all property A\batsoever, wbetber real or 
 personal, may be tlie subject of a mortgage ; and 
 that, >vhere the transaction between the parties, 
 relative to the property in rpiestion, of whatever 
 nature that property may be, has not been an 
 absolute sale, but intended only as a security 
 for a sum of money then advanced to, or owing 
 by, the owner of the property, it must be con- 
 sidered (if not at law, at least in a court of 
 equity,) as, or in the nature of, a mortgage, and 
 as such, redeemable upon the payment of the 
 debt and interest, together with such costs as 
 may have been incurred. And, in treating upon 
 this subject, almost all writers have particularly 
 taken notice that ships, wliother in port or at
 
 XVI INTRODIC riON. 
 
 sea, althoii^li in tin- latt(M- casr tlir iiiunediate 
 possession could not he delivered, were rnpahle 
 of beinji; offered as an effectual security for a 
 l(t;in or del)t, in the same manner as any other 
 personal property. 
 
 But since the passing; of the statutes of the 
 2(J Ceo. 3. cap. (iO, and 34 Geo. 3. cap. 68, ge- 
 nerally knoM'n as Lord Liverpool's acts, consi- 
 derable doubts seem to have been entertained, 
 ■whether there can be any interest in a ship in 
 the nature of a mortp;aj;e ; or, in otlier words, 
 ^^hether a ))ill in ('(juity \Nill lie against a party, 
 who, according to tiie rules and regulations of 
 those acts, has the title duly vested in liim at 
 law, for a redemption, m here the transfer was 
 not intended as an absolute sale, but only as a 
 security eitlur for a loan of money, or for a tlien 
 existing dobt . in a case tliat some time sin<:e 
 came bcforr the ])resent Master of tlir Rolls, 
 then Vice-Chancellor, and ^hieh has alrt^ady 
 been taken notice of,* that harnrd .ludge is 
 
 * Pr^laco, pnzf" vii.
 
 ON 
 
 THE MORTGAGE OF SHIPS, 
 
 S^c. S;c. S;c. 
 
 CHAP. I. 
 
 Of the Regisby Acts ; viz. 7 <^- 8 JVi/L 3. cluip. 22 ; ajid 
 26 Geo. 3. chap. 60. and 34 Geo. 3. chap. 68, common/j/ 
 called Lord Liverpool's Acts. 
 
 More than sufficient, perhaps, has been ad- 
 vanced in the Introduction, to shew the present 
 uncertain state of the law, or at least the fluctu- 
 ating o[)inion in the profession, with respect to 
 the validity of the transfer of ships by way of 
 mortgage ; or rather, as to the existence of any 
 equity of redemption continuing in the party 
 intending to transfer his property merely as a 
 security for a loan or debt. And as the question 
 depends altogether upon a true interpretation of 
 the registry acts, it will be necessary to examine 
 these witli some attention. 
 
 B
 
 2 Of the Rcij;istnf Acts. [iuw. i. 
 
 By the 7tli and nth Will. :\. v^^\^. ±1, which 
 Mas ])asse(l for n\<;ulating abuses in {\\v planta- 
 tion trade onli), it is enacted,* " that, alter the 
 " 'iolh ofMarcli 1().08, no goods or merchandizes 
 " shall he imported into, or exported out of, the 
 ** plantations, in any ship not huilt in England, 
 *' Ireland, or the said colonics or jilantations." 
 And hy the 17th section of tlie same statute, it 
 is further enacted, " that no ship or vessel shall 
 •' l)e deemed or passed as a shi[) ])uilt in Eng- 
 ** land, &c. so as to be qnalilied to trade to or 
 " from the plantations, until the owner shall 
 ** register the same upon oath, l>efore the col- 
 ** lector or comptroller of the port to which the 
 •' said ship or vessel shall belong." The form of 
 the oath is then given, by ^\hich the owner is 
 required to give " a full and accurate description 
 *' of the ship, and particularly, that no foreigner, 
 " directly or indirectly, hath any share or inte- 
 " rest tbcein." This oath, ])y the next section, 
 after being attested by the proper oHicer, and 
 registered by him, is directed to be delivered to 
 the master, and a du[)licate of the register ti'ans- 
 mitted to the commissioners of the customs in 
 London, in order to be enter(Ml in a gen<'ral 
 register. And liy tlie 21st se(!tion it is enacted, 
 *' that no shi])'s name shall Ik^ afterwards 
 
 • Sort. 1.
 
 (MM-. i."l Of the Rcgisty}) Acts. 3 
 
 '* ('lian,<;<'(l, w itlioiit roi^istering such ship de )iovo 
 *' (v, lii( li is tli(;rol)y r<Mjuired to he done upon 
 *' any transfer of |)r()perty to another jiort), and 
 *' (h'h\(Miiijj!: up tlie former certificate to l)e can- 
 ** celled. ■ 
 
 This act only extended, as we have seen, to 
 ships trading- to and from the plantations, but by 
 the 2(jth Geo. 3. cap. 60, entitled, " An act for 
 *• the further increase and encouragement of 
 *' shij)ping and navigation," it is enacted, "that 
 •' from and after the 1st day of August, 1786, no 
 " siiip or vessel foreign built (except prizes) 
 •' shall be any longer entitled to any of the pri- 
 " vileges or advantages of a British-built ship, or 
 ** of a ship owned by British subjects." And by 
 the 3d section of this act, after reciting that it 
 was higlily expedient that the provisions made 
 for tlie registry of ships and vessels by the 7th 
 and Btii Will. 3. should be extended and applied 
 to others than those therein particularly de- 
 scribed, it is enacted, that all ships of 15 tons 
 or upwards, shall be registered by the owner 
 in manner therein-after mentioned, who should 
 obtain a certificate of such registry, according 
 to the form there prescribed. By the 4th 
 section of the same act, it is provided, that no 
 registry shall be made, or certificate granted, 
 except at the port to wliicli the ship belongs.
 
 4 Of the Jicgi^tn/ Acts. [( hai*. r. 
 
 A new form of oath is tlieii ,i;i\("ii, mIicicI)) tlie 
 owner or owners of the ship are refpiired to 
 swear (amongst other things), " tluit he or tlu'V 
 *' is or are the sole owner or owners of the same, 
 ^^ a?id that no othci^ person or persons Kchatsoeter 
 " hath or have any right, title, interest, share, or 
 ^* pj'operty therein or thereto ;' i»i»tl li»>^tly, "that 
 ** wo foreigner, direetly or indirectly, hath any 
 *' share or j>art, or interest in, the said ship or 
 " vessel."* And by the 17th section it is en- 
 *' acted, " that wlien and so often as the pro- 
 
 • It is to be observed, that this oath is not rctjuirod by the 
 act to be taken upon any transfer of a sliip from one owner 
 to another, but only upon the first niakini^ the ret;is(ry and 
 granting the certificate : and 1 have been infornud, tliat in 
 fact this oath is ever taken, except when the register is first 
 granted, or where a new register is granted, upon the old one 
 being delivered up and cancelled. By the loth section, 
 however, of this act, it is provided, that at the time of ob- 
 taining tlic certificate of registry, a bond shall i)e taken front 
 the master, and such owners of the ship as shall pecsonally 
 attend, in the manner before mentioned in the act, in certain 
 penalties, according to the burden of the ship : ami that the 
 couflition of such bond (amongst other things) shall be, that 
 if any foreigner, or other person for his use or benefit, shall 
 purchase or otherwise become! entitled to the whole, or any 
 part or share of, or any interest in such ship or vessel, then 
 that the certificate of registry shall l)e deliver«Ml up within 
 such time, and to such persons, as arc? respectively mentioned 
 IJI tile act, accr>rding to tlie different stations or places in which 
 (he iihip m:ty be at the time of such truiisler.
 
 f II \ I'. I.J Of the RcgLih'i/ /icU-. 6 
 
 " |)rrty in uny ship or vessel helon^in^- to any of 
 *' his majesty's subjects, shall be transferred to 
 "any otiier or others of his majesty's subjects, 
 " in \vhole or in part, the certificate of theregis- 
 "*' try of such ship or vessel shall be truly and 
 *' accur.it<'ly recited in words at length, in the 
 *' bill or other instrument of sale thereof; and 
 *' that otherwise such bill of sale shall be utterly 
 '** null and void, to all intents and purposes.'^ 
 
 Tiie fi-rst case that occurred after the passing 
 of this a(;t, was one that arose upon the transfer 
 of a vessel, then at sea, by way of security for 
 a debt, the validity of such transfer having been 
 disputed, from the circumstance of there having 
 been no recital in the bill of sale of the certifi- 
 cate of registry, as is required by the last-men- 
 tioned section. This case came on originally at 
 law, an action of trover having been brought in 
 the Court of King's Bench* by the assignees of 
 Margetson, who had executed a bill of sale, and 
 had afterwards become bankrupt, against Hib- 
 bert and others, the intended mortgagees ; in 
 "whose hands, also, the grand bill of sale,f as 
 
 * Rolleston aiul others, assignoes of Margetson, a bank- 
 rupt, r. jElibbert and others, 3 T. R. 40G. 
 
 t The grand bill of sale, as distinguished from otiiers, is 
 the instrument whereby the ship is originally transferred from 
 tln' biiililir to the owner or first purchaser.
 
 6 Oj the Rci^Lstry Acts. [chai'. i. 
 
 wvW as a ])oli(\v of iiisnranci' on \\\v ship, had 
 been deposited. Tlie (juestion in lliis case, 
 therefore, Avas not, wliethir a jiood and etfectual 
 mortiraiie of the vessel miulitnot lia\('l)een made 
 between the parties, but only, whether an\ inte- 
 rest whatsoever passed to tlie party to whom tlie 
 bill of sale had been matle, by reason of there 
 not having been a recital of tlie certificate of the 
 registry contained in sucii bill of sale ; and the 
 Court of King's Bench were of opinion, that the 
 terms of the act not haying been complied with, 
 the bill of sale was altogether inoperative and in- 
 eflectual, either to convey, or to create any lien 
 on, the property. It is to be observed, that in 
 the argument for the defendants in tliis case, it 
 was contended, that a written instrument was 
 not necessary to pass the property in a ship; but 
 the Court expressly avoided giving any opinion 
 on that question, inasmuch as it did not arise 
 from the circumstances of the case; lioldiug, 
 since the parties had chosen to convey by a 
 written instrument, that such instrument ah)ne 
 must shew what the rights and intention of the 
 parties were, and that they should not after- 
 wards be permitted to refer to any other agree- 
 ment. 
 
 In consequence of this (kMision at hiw, a bill 
 N\ as tiled in the Court ofCiianrcrN, l»v llilihcrt
 
 ( iiAi'. 1.] Of the Rcgistri/ Act.s. 7 
 
 and the otiicr (IclbiKlanl at law, a^^ainst the 
 a.ssi<;iiees of Mari!;etson,* insisting that in equity 
 they liad a c'ood ri^lit to hold the ship as a secu- 
 rity for the money advanced by them ; and that 
 as Mariietson, if he had not become a bankrupt, 
 would, in ecjuity, have been bound to have made 
 a valid assij^nment of the ship to them, or repaid 
 them the money, so the defendants, his assignees, 
 were bound to do ^^ hat he, the bankrupt, must 
 have done ; and as the ship had been sold under 
 a rule of the Court of King's Bench, and the 
 proceeds invested in the joint names of Rolles- 
 ton and Hibbert, the bill prayed that Rolleston 
 might be decreed to join with the plaintiff Hib- 
 bert in transferring such proceeds to the plain- 
 tifi's in satisfaction of their debt. 
 
 The bill was endeavoured to be supported 
 upon the ground that a court of equity will 
 establish agreements where the instruments 
 made use of by the parties are, or have become, 
 inoperative at law; as in the case of a feoffment 
 without livery of seizin, or of a mortgage of a 
 copyhold estate without a surrender. The bill, 
 however, was dismissed ; and although no deci- 
 sion was publicly given, it being one of the 
 cases upon which Lord Thurlow, before whom 
 
 * Hibbert v. Kollcstoii, 3 Br. C. C. 571.
 
 8 Of the Rcgistrif Acts. [chap. i. 
 
 it had been lieard, sent liis ju(li::in('nts to the 
 Reg:ister of the Court, upon his rt>sii:;nini:; the 
 seals, yet we have reason to know * tliat liis 
 Lordsliij)'s judjiment was founded upon \\ liat has 
 been' considered as the policy of the rei;:istry 
 act,t inasmuch as the object of that policy, it is 
 said, could not be obtained, if an equitable title 
 to a ship could subsist, as ])arties iuii;lit rest 
 upon tlieir equitable title, without taking any 
 steps for procuring the legal title. 
 
 In a court of law, it would seem that the case 
 of Rolleston v. Hibbert could not possibly have 
 been otherwise decided ; for, as the requisites 
 of the act had not been complied witli, the bill 
 of sale was inoperative so as to pass the legal 
 estate, in the same manner as a feoffment can be 
 of no legal validity without livery of seizin, or a 
 bargain and sale under the act of 27 Hen. 8. 
 without enrolment. In these cases, however, as 
 in a variety of others which might be put, where 
 the property intended to be conveyed could not 
 pass at law, by reason only of some formal de- 
 fect, a court of equity will give relief; and look- 
 ing upon the defective conveyance in the nature 
 of a contract binding upon the conscience of the 
 
 * Viflc iiifr:!. 
 
 t 20 Gto. :i. c.GO. Sec Mestarr v. (iill<--iiir, 1 I Vis. G'i">.
 
 CUM'. 1.] ()/i/n:Ju'i(istrj/.1i/s. f) 
 
 pnrly, will diii'ct iiiin to make j^ood the It'iiul 
 title. J5ut althdiiuli liiis \\ i'll-cstablishcd piiri- 
 riplo of ('(jiiity clearly arose in tlie case of Rol- 
 leston I'. llil)l)crt, l^oid Tliurlow seems to have 
 tlioni::l)t himself hound, not hy the words of the 
 act of l^arliamcnt, for those of the statute of in- 
 rohnent are equally inoperative, but, as has been 
 already observed, by the policy or general spirit 
 of the act. 
 
 The next case that called for a decision upon 
 the act of the -iOth Geo. 3. arose upon a pcjlicy of 
 insurance on tJie freight of a ship.* 
 
 The ship in question had been purchased by 
 four persons as partners, but had been registered 
 in the names of two of them only. And the in- 
 surance having been effected by three of the part- 
 ners, the action ^vas brought in their names, and 
 the declaration consisted of two counts; the first 
 averring the interest to be in the three plaintiffs 
 themselves, and the second averring it to be in 
 them jointly Avith the fourth partner. For the 
 plaintiff's it was contended, that although, under 
 the statute of -IC) Geo. 3. they could make no kgal 
 title to the ship, yet that they had an insurable 
 interi'st ; forwliich jiurpose it was sulhcient to 
 
 * Caiink'ii V, Aiukrsuii, -3 Ft iiii Uej). 709.
 
 10 Of I lie RcL^i.s/n/ ulc/s. [( iiAi'. I. 
 
 shew tliat they had an cqiiitabk inlort'st to entitle 
 tluMn to the freight, the suliject matter of the 
 iiisuiaiiee. The Court, howeNir, partieiihirly 
 reeo.i;nizing- the authority of Ilihbert v. RoUestoii 
 hclore Lord Thurh)N\, (U'ei(h'd, not only that 
 the |)laintilVshad no legal interest in the ship, but 
 that they had no interest Avliatever Avhieh could 
 he tlie sul)jeet of an insurance. 
 
 Tiiis case has aluii^s been considered as an 
 extremely strong- and ^veighty decision ; for it 
 is clear, that in an action upon a policy of in- 
 surance, a court of h\\\ always takes notice of 
 the doctrine of trusts, holding, according to the 
 argument ujion which we have seen the plain- 
 tiff's claim was endeavoured to ])e supported, 
 that a cestui que trust has always an insurable 
 interest. The Court, therefore, must, in this 
 case, have been of opinion, that the two })artners 
 whose names had not l)een inserted in tlie re- 
 gister, although they had paid thi ir efpial shares 
 of the purchase-money of the ship, could not be 
 considered as having any equitable interest in the 
 vessel, nor have maintained any bill in erpiity 
 against the other two ])artners in respect of the 
 same. 
 
 Notw ithstandimr, however, the decision both 
 of tlir Judges of tin; C')iirt of King's Hench, nnd
 
 ( iiAi'. 1. 1 Of tin Rcgistrij Ads. 11 
 
 tliat ol' lionl 'J'liurlow in a court ()l'<(jiiit y, in tlu; 
 case of IliljIxTt r. Kollcston, snpjjortcd and con- 
 firmed, as it allcrwai'ds was, l»y the last-inen- 
 tioned case of Camden V. Anderson, \\liicli, for 
 the reasons already given, we may look u})on as 
 II decision declarini:; not only tlu^ l(^gc{l, l>'it the 
 equitable, interests of the parties ; some doubts 
 appear to have been still entertained whether 
 property in a shij) mij^ht not ])e transferred, at 
 least in equity, without a bill of sale, or some 
 other instrument in writini;- ; or \\h< tlier a mere 
 contract or aiireement for such transfer might 
 not be valid. These doubts seem to have given 
 rise to the .34tli of Geo. 3. cap. 08 ; * or at least, 
 to such provisions therein contained as we shall 
 now have occasion to notice. 
 
 By the 14th section of this act, after reciting, 
 *' tliat the clause in the former act requiring, upon 
 " any transfer of a shi-p in wliole or in part, tiie 
 " certificate of the register of such ship to be 
 " truly and accurately recited in the bill of sale 
 " in the manner herein-before mentioned ;"' and 
 
 * It is to be remarked, that this act was passed previous to 
 the decision in Caiuden r. Anderson. It appears to have re- 
 ceived the royal assent on the 13th of Jinu; 171)4; whereas, 
 according to the report of this case in Last, it was not dc- 
 tiiUd btfore the Jth of .July foUowina.
 
 12 Of the Rtgt.stri/ Jct^. [iw.w. I, 
 
 riii'tlur rocitiii";', " (hat doulits had arisen Mhe- 
 *' ther> hy the said provision, evt*rv transfer of 
 " |)roperty in any ship or vessel was reipiired to 
 *' he made l)y some hill, or other instrument, in 
 *' Avritinii" ; and whether contracts or agreements 
 " for the transfer of such j)roperty mij;ht not be 
 " made w ithout any instrument in writing," it is 
 enacted, " that no transfer, contract or agree- 
 " ment ft)r transfer, of property in any ship or 
 •* vessel, made or intended to be made, after the 
 " first day of January 1795, shall be valid or 
 " effectual for any purpose whatsoever, either 
 •' in law or equity, unless such transfer, or con- 
 " tract 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 prescribed by the said recited act." 
 
 By the next section, after reciting, " that by 
 *' the laws then in force, upon any alteration of 
 *' property in any ship or vessel in the same port 
 ** to which such ship or vessel belonged, an in- 
 *' dorsement upon the certificate of registry was 
 *' rcfpiired to be made," it is enacted, " tliat 
 " such indorsement shall, from and after the 1st 
 ** day of January 1705, be made in the manner 
 *' and form therein-after expressed ; and shall be 
 " sigiud by the person or persons transferring 
 " the p!(»|)(rfy of file said ship <»r vessel by sale,
 
 rn\!'. I.J Of tlw Ri'^'ulry Ads. 13 
 
 '' or rontract or agreement for sale tluM-oof, or 
 " l)y soiiic person Iei:;ally anUiorized for that 
 " purpose by iiiin or tlieiii ; and a copy of sucli 
 " indorsement shall be delivered to the person 
 " or persons authorized to make rej'istry, and 
 '* ji,rant certificates of registry ; otherwise such 
 " sale, contract or aji,reement for the sale there- 
 " of, shall be utterly null and n oid to all intents 
 " and purposes whatsoever." The form of the 
 indorsement is then given, which is required to 
 be signed in the presence of two witnesses.* 
 
 The 16th section provides, " that if any ship 
 *' or vessel 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 
 •' and certificate cannot be immediatc^ly made, 
 *' the sale, or contract or agreement for the sale 
 
 * The form of the indorsement given in the act is as fol- 
 lowsj " Be it remembered. That [I or we] [names, resi- 
 •* dences, and occupations of the persons selling] have this 
 " day^sold and transferred all [my or our] right, share, or 
 " interest in and to the ship or vessel [name of the ship or 
 •' vessel] mentioned in tlie within certificate of registry, unto 
 " [names, residences, and occupations of the purchasers]. 
 " Witness [my or our hand or hands] tliis [date, in words at 
 *' full length]. 
 
 " Signed in the presence of [Two witnesses.]'*
 
 14 Of the Rtiiisny AcLs. [( hai'. i. 
 
 " thcrcor, sluill, iiotw itlistaiulinu,, l»c iiuuli' hy a 
 " hill of snlc, or otluT instniment in wiitinu,', as 
 *' before (lircctcd ; and a ro[)y of sucli hill of 
 *' sale, or other instrument in writinp;, shall he 
 " delivered, and an entry thereof shall be en- 
 " dorsed, on the oath or affidavit, and a me- 
 *' moranduni thereof shall he made in tiie hook 
 ** of reg^isters, and notice of the same shall h<^ 
 " niven to the commissioners of the customs in 
 ** the manner therein-before directed ; and with- 
 " in ten days after such ship or vessel shall re- 
 *' turn to the port * to m hich she belon.cs, an 
 *' indorsement shall be made, and sii:;ned by the 
 " owner or owners, or some ])erson le,i:;ally 
 " authorized for that |)urpose by him or them, 
 *' and a copy thereof shall be deli\ered in man- 
 " ner herein-before mentioned ; otherwise such 
 " bill of sale, or contract or agreement for sale 
 "thereof, shall be utterly null and Aoid, to all 
 *' intents and ])urposes whatsoever ; and (uitry 
 " thereof shall be endorsed, aiul a memorandum 
 *' thereof made, in the manner herein-lx-fore 
 *' directed." 
 
 * It is t<» 1)0 ohsorvcd, tliiit :i1i1i()iil;1i, willi r«s|)( ct to any 
 transfer or sale ot a sliij) wliik' at sea, it is provided that the 
 imlorsemont of such Iranster must \h' made w ithin ten days 
 after the return of the ship to the port to which slie Ik Ionics, 
 yet no time is limited as to the makint; sucii indorsenunt, with 
 respect to the transfer of ships in port.
 
 <ifM». I.] Of /he R('o-i.s/nj Acts. 15 
 
 It is i)iiiicip;illy upon tlio 14th section of tliis 
 last statute, that the doubt appears to have arisen, 
 whether or no property, of the nature of which 
 we are now treating-, can be holden in mort;^age. 
 It has been thoui^ht expedient, nevertheless, to 
 refer to the former acts, as they v. ere all passed 
 in pari materia, and must necessarily be taken 
 toji:ether, and considered as one act, declaratory 
 of the object which the legislature had in view, 
 and of the means by which that object was to be 
 secured; and also to call the reader's attention 
 to the other sections of the last act, w hich are 
 here set fortli, as they may tend to throw some 
 considerable light upon the sul^ject. 
 
 The earliest case that came before the Court, 
 after the passing of the act of 34 Geo. 3. Avas 
 Moss V. Charnock.* This was an action of tro- 
 ver, ])rought by the assiirnees of a bankrupt, to 
 recover the possession of a vessel, of which the 
 bankrupt had executed a bill of sale to the de- 
 fendant. The assignment Avas made on the 15th 
 of November, when the ship was at sea, and the 
 act of bankru])tcy was committed on tlie 19th of 
 the same montii. Tiie requisites made necessary 
 by the registry acts w^ere complied witli by the 
 defendant on tlie l-3th of Deceml^er lollowing, 
 
 * 2 East, 399.
 
 1(J ^V^l'^' A*(';'7.v/ ; -ij .Lis. I ( 1 1 \ 1' . 1 . 
 
 0\'r('j>t as to till' iudorst'MU'iit upon tlu' cert ili- 
 catr <»r r(\i;istry ; and \> iiicli was coniplt'trd 
 vitliin the ten days limited and all(>\vud l>y tlie 
 last-mentioned act, alter the return of the vessel 
 to the i)ort to wiiieh she behjnj^ed. It further 
 appeared in e\idenre, that the bankrupt, when 
 he executed the assii::nment of the ship, did 
 not deliver u[) the possession of the orij^inal 
 bill* of sale, but the same continued in his own 
 custody till after the time of his bankruj)tcy. A 
 verdict liaving- been found for the ])laintifl's, and 
 a rule afterwards ol)tained in tlie Court of Kinp;'s 
 Bencii, for setting; the verdict aside and ;LJ,rantin^' 
 a new trial, this rule was resisted on tlie two 
 following grounds, \'v/.. first, Ixm^uisc the origi- 
 nal bill of sale not liaving been delivered over to 
 the defendant at tlie time of the assignment, but 
 kept by the baiikru[)t in his own i)ossession, 
 such assignment was void under tlie statute 
 21 Jac. 1. c. 19; and secondly, because the re- 
 quisites of the registry acts not having been com- 
 ])lied with l)efore the bankruptcy, the sale was 
 not then complete, and therefore of no effect ; 
 a'ld the verdict was established by the judgment 
 of the Court. As the grounds, however, on 
 
 • Mtaning, it is presumed, M'liat is usually tcrnud \hv 
 prand Will of >alc, or instrument by which the ship is ori<;inally 
 trau>ferrtd IVum the builder lo the owner or fn>t purchaser.
 
 c-iiMv I.] Of the Registry ."lets. 17 
 
 >\lii(li it had hccii siippoitrd were perfectly dis- 
 tinct from eacli other; the one having reference 
 to, and restinij; nj)on, the statute of 21 Jac. 1., 
 and tlie other iii)on tlic registry acts, it will }>e 
 necessary to pay particnlar attention to what fell 
 from the Court in {giving its judgment upon the 
 case. Mr. Justice Lawrence, and Mr. Justice 
 Le Blanc, were the only judges before whom it 
 had been argued ; and Mr. Justice Lawrence, in 
 delivering the opinion of Mr. Justice Le Blanc 
 and himself, after having noticed the particulars 
 of the case, and the two distinct points ^^hich 
 had been taken in the argument, intimated, that 
 as the Court were of opinion with the plaintiffs 
 on the second point, it was unnecessary for him to 
 say any thing on the first. It may appear, perhaps, 
 somewhat singular, that the learned Judges 
 should have taken this course in giving their 
 judgment, — that they should have passed by that 
 upon which it is humbly conceived it might have 
 rested, as upon a well-known and certain foun- 
 dation ; and rejecting this, that they should have 
 elected, as it were, the new, and at least uncer- 
 tain, ground afforded by the registry acts, as 
 ap})lical>le to the case before them. It is evi- 
 dent, that there is nothing in either of these acts 
 which could directly apply to, or m hich, ex ne- 
 cessitate rei, must have governed or decided the 
 question. Mr. Justice Lawrence, having cited 
 
 c
 
 18 Of the I\ci>;istni Acts. [chap. i. 
 
 tlic KJtli si'ctioii id" llie ;> 1th (uo. ;3. v. (18, direct- 
 ing the indorseinent to be made on the certihcate 
 of registry \vithin ten days after tlie return of the 
 sliip or vessel to the port to which slie belongs, 
 and declaring that otherwise the bill of sale, or 
 agreement for sale, should be utterly null and 
 void to all intents and purposes whatsoever, did 
 not put the case as falling within the words of 
 this clause of the act ; but such being the words 
 of the act, he said, he thought the public would 
 be most effectually served ])y holding, that no 
 interest should pass from any owner in British 
 ships to any other, until the public had that in- 
 formation which was so essential to its commer- 
 cial welfare; and that the objects of the parties 
 to such contracts would be best consulted by 
 allowing the longest time to comply with the 
 requisites of the act, so as that which was meant 
 to operate as a certain means of compelling men 
 to give that information were not destroyed or 
 weakened. And this, it was further remarked 
 by the learned Judge, would be done by con- 
 struing the statute as enacting, that no bill of 
 sale, or other sue h instrument, should have any 
 operation or effect, until the requisites imposed 
 on the parties to the sale were complied w ith,* 
 
 1 1 woulil siciii to follow, as u necessary conso<jnonc«^ of 
 this doctrine, tiiat a ship, while contintiiii^ at sea, could nei-
 
 C'liM'. I.] ()/' i he Regis/ ri/ /Ids. ]U 
 
 and l»y not allowinu: any nUation to hold good, 
 so an to make tlio conveyance effectual from any 
 antecedent time. And that, ])y such construc- 
 tion, the ])arties to tlie contract would l)e most 
 stron.L!,ly called on to comply immediately with 
 the requisites of the act. And the purchaser 
 would not lose the benefit of his contract, if at 
 any time he complied with the requisites before 
 the rii^hts of others intervened. And after ol)- 
 serving, that the case in question had been com- 
 pared to the cases of inrolments of bargains and 
 sales under the statute of 27 Hen 8., the learned 
 Judge goes on to remark, that the words of the 
 two statutes were very different ; the statute of 
 Hen. 8. enacting that no manors, lands, &c. 
 should pass by bargain and sale, except the same 
 should be enrolled within six months after the 
 date of the indenture ; whereas the statute then 
 under consideration enacted certain things to 
 
 thor be bought or sold, at least so as to transfer the property 
 to the purchaser. By the very words of the act, the bill of 
 sale is declared to be null and void, if an indorsement shall 
 not be made, and signed by the owner, in the manner there 
 pointed out. See 34 Geo. 3. c. 60. s. 16. It may be contended, 
 therefore, that the bill of sale must be in force until the time 
 arrive when the indorsement ought to be made. The omission 
 to do the subsequent act operates as a forfeiture ; but there 
 can be no forfeiture, until the penalty be incurred, which is to 
 create it. 
 
 c 2
 
 20 Of the Registry Acts. [ihap. i. 
 
 be donr, otlidNNisr that tlif l)ill (.(" sale sluiiihl 
 l)c utterly null ami \()iclt()all iiitciits and jmr- 
 poses. 
 
 The reasoniiip:, however, in this judgment, has 
 ^iveii rise to much judicial ohser\atioii, hotli in 
 our courts of" law and of e(|uity. Lord J'^ldon has 
 truly ohserved, that the pr(HM)sition, as stated 
 in Mr. Justice Lawrence's judj^ment, goes to this 
 extent ;* that if a man sold a ship at sea, the 
 vendee having done every thing recjuired by the 
 act that could be done; but afterwards, be- 
 fore the arrival of the ship in port, an act of 
 bankruptcy was committt^l by the vendor, 
 the assignees under the commission of bank- 
 ruptcy, and not the vendee, woidd take the 
 ship-t In tliis his Lordship said he could not 
 
 * Mestacr r. Gillespie, 11 Ves. 637. 
 
 f Let us suppose the case of a ship sold when at soa, and 
 all tlie forms of the statute complied with, as far as tluty w<Te 
 capable of being so ; that the ship is afterwards lost at sea, or 
 cajttured by the enemy, so that she could never return ; would 
 not the bill of sale hav<' passed such an interest to the purchaser 
 as to entitle him to receive sucii freight as might have accrued 
 after the date of the bill of sale to the time of the loss or cap- 
 ture, as in the common case of a transport engaged by the 
 m<inth .' And would not such bill of sale, acconipiiuied with 
 an assigunifnt of the policy by which tlie shi[) had been in- 
 sured, pass such an inttr(!st to the assignee as to «nable him to 
 maintain an action under the policy against the underwriters ?
 
 f MAP. I.] OJ' the Registry Acts. 21 
 
 (MUK'ur; and referrinj; to the annuity act, stated, 
 lie aj)|)rehended, the proposition that the p^rant 
 of an annuity ^vouhl he j^ood for nothinj^, if an 
 act of hankruptcy \vere to take i)hice hefore en- 
 rohnent, would have heen a considerable sur- 
 prize upon Lord Thurlow. It is certainly very 
 diflicult to follow Mr. Justice Lawrence in the 
 distinction he draws between the statute of en- 
 rolment and that of the 34th Geo. 3. ; the one 
 directini;- all conveyances of land by bar<^ainand 
 sale to be void, except they are afterwards en- 
 rolled within a given time ; and the other enact- 
 iui;- that (dl bills of sale of ships should be void 
 unless certain forms therein directed should be 
 afterwards complied with. But in the annuity 
 act the very same words are made use of, the 
 first section directing every deed, bond, instru- 
 ment, or other assurance, by which any annuity 
 shall be secured, to be inrolled within twenty 
 days after the execution, and declaring that 
 otherwise such deed, bond, instrument, or other 
 assurance, shall be null and void to all intents 
 and purj)Ose^ whatsoever. But it has never 
 been contended, in any of the numerous cases 
 tiiat have arisen upon this statute, that no estate 
 could pass from a party executing a deed for the 
 purpose of securing the payment of an annuity 
 falling within this act, until the inrolmeat had
 
 •22 Of the Rcgisny .'lets. [( n a i' . i . 
 
 taken place; or if an act of bankruptcy on the part 
 of the i^rantor shonld intervene before the expi- 
 ration (»f the twenty days, tliat tlie inrolment 
 conld not l)e afterwards efl'ected so as to pass a 
 
 trood estate to tlie grantee.* 
 
 In the case of Hnbbard v. Johnstone.t 
 Mr. Baron Wood has expressed his o})inion to 
 the same effect with the Lord Chancellor, de- 
 claring; that he could not agree to the doctrine 
 laid down in the case of Moss v. Charnock; and 
 saying, he thought the property passed instantly 
 by the bill of sale, and that the subsequent acts 
 to be done were not necessary to transfer the 
 
 • With respect to the statute of inrolment, it seems to be 
 the established doctrine, that the bargainee has a seizin imme- 
 diately upon the execution of the bargain and sale, subject to 
 be defeated, in case the inrolment should not tako place within 
 the time prescribed by the act. Thus, if A. liargain and stll 
 his land to B., and after this A. doth brconio a bankrupt, and 
 the commissioners sell the hind to C, and aftor the died is 
 inroUed within six monllis ; in J)i» case B., and not C. the 
 purchaser, shall have the land. Sluphard's Touchstone, 2'2G. 
 It is admitted, also, that a bargainee is a good tenant to a 
 writ of entry before inrolment, and that a sale by him before 
 inrolment is good, so as in each case the inrolment be had in 
 due time. See 3 Preston's Abst. 00. 
 
 f a Taunton, 177. See page 200.
 
 CHAP. 1.] Of the lli'giatrij Acts. 23 
 
 property, but that tlie grant was defeasil^lc l»y 
 siil)seqiHMit omissions in cases where it was so 
 expressly provided, but not otherwise. 
 
 The judfi:incnt we liave been examining;, as 
 delivered in the case of Moss t;. Charnock, lately 
 came again under the consideration of the Court 
 of King's Bench in the case of Palmer v. Moxon.* 
 This was an action against a sheriff for a false 
 return to a writ of testatum fi. fa. The question 
 for the consideration of the Court was, whether 
 the execution of a bill of sale of a vessel, then 
 being in the port to which she belonged, trans- 
 ferred the property to the vendee at the time of 
 its e.recutio7iy the requisites of the registry acts 
 having been afterwards complied with (as under 
 the circumstances of the case it seems to have 
 been admitted they were,) within a reasonable 
 time ; or whether the property was extendable 
 under a writ of fi. fa. issued after the execution 
 of the bill of sale, and the indorsement of the 
 memorandum of transfer on the certificate of 
 registry, but before the delivery of the copy of 
 such indorsement to the proper officer. In ani- 
 madverting upon the case of Moss v. Charnock, 
 the Court said tliey thought that case had, under 
 
 • 2 Maulc & Selwyn, 43.
 
 •24 Of the Ixcgisiri/ Ads. [( iiai>. i. 
 
 the circumstiinces, bcon ii;;htly drridrd ; Imt it 
 is to be observed, they rest that (>j)ini(iii iijk u 
 grounds very diflereut from those taken by tlie 
 learned Judges, ])y \vlioni tliat judi::nient was 
 p:iven, reniarkinj;- that tliere was j:;ross (h lay in 
 that case in complying with the forms of the 
 act; whereas it was never attempted, either at 
 the bar or by the Court, to ])ut that case upon 
 the ground of delay in performing these acts; but 
 the whole case was made to rest upon the inabi- 
 lity of the vendor to perform tliem after his 
 having committed an act of bankruj)tcy. In the 
 case then before them, however, the Court con- 
 sidered that, according to the true construction 
 of these acts, the bill of sale should be holden 
 to transfer the property from the time ol its 
 execution, but should be liable to become void 
 ex post facto, that is, if the party did not comply 
 with the requisitions of the statute within a rea- 
 sonable time; upon the failure of wliich the sta-. 
 tute made the sale null and void. 
 
 The same question shortly afterwards arose 
 in a case before the Lord Chancellor,* in wliich 
 his Lordship expresses his decided approba- 
 tion of the decision in Palmer r. Moxou, and 
 assimilates the principle of these cases to that of 
 
 * Dixon V. twaii, :{ Mnivali , '.Vl-1.
 
 ciiAP. 1.] OJ' the R(<{i.snj/ Acts. 25 
 
 such :is liavr arisen under tlie annuity act, })y 
 which it liad hecn tlccidcd tluit the j^rant of tlie 
 aruiuity passes the ownership instantly, subject 
 to l)e <li vested Ifi case of non-compliance \\\{\\ 
 the provisions of the act, by inrolment within 
 the twenty days thereby limited. Before his 
 Lordship, however, p:ave his final judgement in 
 this case, he states himself to have consulted 
 with some of the Ju(l<i:es upon the question, con- 
 siilerin^' that some important points of law w^ere 
 iinolved in its decision. His Lordship then 
 states, that he had received from Mr. Justice 
 Abbott,* then on the circuit, a note containini^ 
 the opinion of himself and the Lord Chief Justice 
 of the Common Pleas, "f whi(;h was in substance, 
 that the transfer of a ship at sea, if all the re- 
 quisites of the registry acts had been duly com- 
 plied with at the time of the transfer, vested the 
 proj)erty in tiie vendee, subject only to be di- 
 vested upon the neglect of the vendor to make 
 the indorsement on the certificate of registry 
 within the ten days after the return of the ship 
 into port ; and that, if a bankruptcy intervened 
 Ijefore the arrival of the ship, tlie indorsement 
 being only an act of duty on the j)art of the ven- 
 
 Tlio j)n"<(iit Lord Chief Ju^^ticu oi' the Court of King's 
 Ben<-h. 
 
 t Sii \'i< arv (;il)l)-<.
 
 2(> Of the Rcgistrif Acts. [chap. i. 
 
 (lor, ami passinj:; no interest, ini^ht hv pcifonm-d 
 by the hankrupt himself; and tliat (as in that 
 case) if* the vendor had given a po\ver of attor- 
 ney to perforin this act of duty previous to the 
 haukruptcy, his attorney might carry it into 
 ('fl'et:t notwithstanding the act of bankruptcy had 
 int«rnu'(liately occurred. His Lordship then 
 said, that he should act on the authority of the 
 Judges so communicated to him, as if it were 
 the settled law of the case ; which, indeed, upon 
 looking into the acts of Parliament, and consi- 
 dering tlie opinion delivered to him, he tiiought 
 that it was. But, if any of the parties should 
 think otherwise, and should chuse to have a case 
 for the decision of a court of law, he would give 
 it them. 
 
 It does not appear that any case was applied 
 for, we may therefore look upon this point as 
 being completely set at rest. 
 
 The ground of the Lord Chancellor's judg- 
 ment in J)i\on V. Ewart, we liave seen, was tiie 
 \ali(lity of the bill of sale in passing the legal 
 estate, subject only to be subsequently rendered 
 void by the non-compliance with certain forms 
 made necessary by the registry acts : for, if the 
 bill f>f sale could have been considered as hav- 
 inu h;i(l jmv «n"«(l in niving the party an ecpiita-
 
 riiAP. I.] Of the Jlcghlry Acts. 27 
 
 l)lc interest, as distinct from tlie l(\2,al interest, 
 there could have l)een no necessity to have sent 
 a case for the decision of a court of law ; nor 
 would tlie Lord Chancellor, it is presumed, have 
 seen occasion to have consulted witli the com- 
 mon law Judj;es upon the point before him, but 
 would have decided the case upon its equitable 
 circumstances. 
 
 CHAP. II. 
 
 Of the E/Ject of the Registry Acts upon Mortgages of 
 Ships, and particularly upon the Equity of Redemp- 
 tion. 
 
 In the case of Dixon v. Ewart, taken notice of 
 at tlie end of the last chapter, the Lord Chan- 
 cellor declares, tliere is no doubt that there can 
 be no such thing as an equitable title to a ship ; 
 and after alluding to the case of Thompson v. 
 Smith before referred to, his Lordship remarks, 
 that when the former act passed, there was not 
 suflicient attt'ution paid, in framing its enact- 
 ments, to what might be its effect upon the prin- 
 ciples adopted in courts of equity ; and it was to 
 remedy that deficiency that the last act was in- 
 troduced, by wliich it is now completely esta-
 
 28 ^>i7'i'i'' of the Registry Acts [iwxv. ii. 
 
 Mislicd tlj.'it there ran he no siuli ihiii;^ as tlie 
 e<|uitahle ownership of a ship. 
 
 The case of Dixon r. Ewart ocmrred a short 
 time after that of Tlionipson v. Smith, whieli has 
 been already alluded to, and \vhich it will now 
 he necessary to examine somewhat more at larf::e, 
 hut having been led into a discussion of the doc- 
 trine advanced in tlie case of Moss r. Charnock, 
 and wliich we may consider as only havinj;- l)een 
 finally disposed of by that of Dixon v. Ewart, we 
 were naturally induced to take notice of it in 
 the first instance. 
 
 In Thomjison v. Smith,* a l)ill of sale of one 
 third part of a ship then at sea, had been exe- 
 cuted by Llew ellyn, the owner, to the plaintiffs, 
 for the purpose of indemnifying them against the 
 payment of a bill of exchange, w hich they had 
 indorsed on his account, with a power of attor- 
 ney enabling the plaintiffs, on the return of the 
 shij) into port, to procure the necessary indorse- 
 ment on the certificate of the registry, and to do 
 all such other acts as might be requisite to com- 
 plete the bill of sale, l^reviously, however, to 
 the execution of the bill of sale \o tlie plaintiffs, 
 and without their knowledge, Llewellyn iiad 
 
 • 1 .Miul.ijyo.
 
 CHAP. II.] ttpori ][ fort gages of Sliips^ 8^c. 29 
 
 execulod another l>ill of sale of his third part of 
 tlie ship to tlie defendant Smitli, for the j)urpose 
 ofsecurini^ the payment of 35(j/. This debt was 
 afterwards paid oft', at the instance of the plain- 
 tift's ; bnt Smith, nevertheless, refused to give 
 lip, cancel, or assign his hill of sale, but by 
 another bill of sale re-assigned all his interest to 
 Llewellyn himself. The ship being all the while 
 at sea, with the certificate on board, none of 
 these bills of sale had been, nor were they ca- 
 pable of having been, indorsed on the same ; but 
 all the other forms of the act had been duly 
 complied with, as to each of the three transfers. 
 Llewellyn having afterwards become a bank- 
 rupt, and a large sum of money remaining due 
 to the plaintiff's, in respect of what they had 
 paid as indorsees of the bill of exchange, they 
 tiled their bill in the Court of Chancery, pray- 
 ing that the assignees of the bankrupt might be 
 restrained fi'om indorsing, or procuring to be 
 indorsed, on the certificate of the registry, a 
 memorandum of the h\\\ of sale from Llewellyn 
 to Smith, or of that by whicli the re-assignment 
 was made from Smith to Llewellyn ; and from 
 doing any act to prevent or hindt^r the plaintifi's 
 from procuring to be indorsed on the said certi- 
 ficate, a memorandum of the bill of sale to them, 
 until they should have been fully paid and satis- 
 fied the monov remaininir due to them.
 
 30 Effect of the Registry Acts [chap. ii. 
 
 From tlu' above statement it appears, that the 
 legal title was in the assignees of Llewellyn the 
 bankrupt, under the re-assignment from Smith 
 to him previously to his bankruptcy ; but the 
 plaintifl's rested their rase ii])(»n their equitable 
 title, as arising from tlie bill of sale executed to 
 them by Llewellyn, of the 3d of I)ereml)er 181 1. 
 To this it was ol)jected on tiu' Ix half of the 
 assignees, that since the registry acts there 
 could be no such thing as an erpiitable title to a 
 ship, and that, as the transfer from Llewellyn to 
 the plaint ifVs was ineflectual and invalid at law, 
 the legal estate, at the time of such transifer, hav- 
 ing been in Smith, under the original assignment 
 to him, it was equally ineffectual and invalid in 
 equity ; and that the title must be in them, 
 Mhom the |)ublic documents designated as the 
 owners. And it was further insisted, that there 
 could be no such thing as an equity of redemp- 
 tion in a ship since the registry acts. It l)e- 
 comes material here to remark, that two very 
 distinct |)ro|)ositi()ns were advanced in this argu- 
 ment ; first, tliat since the registry acts there 
 can be no sucli thing as an equitable title to a 
 ship ; and secondly, that since tlie passing of 
 these acts, tiiere can be no such thing as an 
 equity of redcTUpt ion in a sliip. it is tlie latter of 
 these propositions wliich we h;i\e more particu- 
 hnly to exaiiiine ; but as they appear lo have
 
 CHAP. 1 1. J Upon Mortgages of Ships, ^c, .31 
 
 been often confoundetl toi^ether ; and, indeed, 
 as tlie very idea of there beinj^ no such thin^ as 
 an equity of redenn)tion in a ship seems to have 
 arisen from the notion that there can l>e no such 
 thini>- as an equitable title to a ship, it will l)e 
 useful, and indeed necessary, first to ascertain 
 how far tliis notion is correct. In support of 
 tliis proposition it was contended by the counsel 
 for the defendants, that, in several cases, courts 
 of equity had refused to j^ive effect to an equita- 
 ble title ; and they principally relied on two 
 cases that had then lately been decided by Sir 
 William Grant, then Master of the Rolls. In the 
 first of these,* a bill had been filed by the ai5- 
 signees of a bankrupt, under the following cir- 
 cumstances. Dawson, together witli another 
 person, his partner, being the owners of a ship 
 wliich was thcMi at sea, on the 2.3d of Ajiril 180B, 
 executed a iiill of sale to Bland and another, and 
 a copy of the bill of sale had been duly sent to 
 the commissioners of the customs, according to 
 the act. of 34 Geo. 3. Some time in the month 
 of May following, Bland and his [)artner became 
 banlvru[)ts, and the plaintiffs were appointed 
 tlieir assignees ; and in the same month, Daw- 
 son and his partner also became bankni})ts, and 
 the defendants were appointed tlieir assignees. 
 
 ' Ni'wiiluuu ;. Gravis, 1 Mad. 391), iioto.
 
 32 ^/A'/ of the Rcgi^itry Ads [en \v. ii. 
 
 On lln' :)l>t of July in tlic sanu- ycnir, the ship 
 arri\t(l in London, being the port to \vlii('h slie 
 belon.ii^ (I, and the phiintift's innnediately took 
 actual i)Ossession of the vessel, and applied to 
 the captain for the certilirate of the ie;;istry, for 
 the pui[)ose of procnrinji; the necessary indorse- 
 ment, Avithin the ten days limited and reqnired 
 by the act, after the ship's arrival. The eap- 
 tiiin, ho%ve\('r, actini;- in collusion Avith the de- 
 fendants, the assiijjnees of Dawson and Co., re- 
 fused to deliver up to them the certificate, and 
 the ten days elapsed without any sjuh indorse- 
 ment ha\ini;- l)een made. It was admitted by 
 the assij:;nees of Dawson and Co., that applica- 
 tion had been made to them to direct the captain 
 to deliver up i\w. certificate, and that they had 
 refused so to do. L'nder these circumstances, 
 the ef[uity of the case, according? to the princi- 
 ples upon which these courts arc invariably in 
 the habit of actinjj;, was clearly w it li 1 lie j)hiin- 
 tifls. The Master of tlu' Rolls, however, was 
 of()j)iuion, that the statute .'J4 Geo. 3. was im- 
 perative upon the Cy«)urt, and precluded him 
 from jnivinii: any relief, and tliereior*- dismissed 
 the l)in. Ill the otiier case * relied ii|)on for the 
 def<'ndants, llobson, who afterwards became a 
 bankrupt, on the .')d of Alarcli IJil-i, had (>\e- 
 
 • Barker r. Clmpmiin, 1 iNIad. jcigc 100, iiolc
 
 ( iiAi'. II.] n])(i}i ]\ fort <!;(igc-s of Ships, fy-. :v.\ 
 
 ciilcd ;i hill ol' sale of the ship Bacchus (o tlu^ 
 [)laiiitift", and had made thr j)roper indorsement 
 on the register, in Ihc presence of two wit- 
 nesses (which is rendered necessary by the form 
 ,i2:iven in the act), and sent the instrument to the 
 broker ; but the witnesses not havin^^ signed the 
 attestation, whether from inadvertence or design 
 it did not appear, the l)ill of sale was returned to 
 Kobson to get it properly attested ; but he hav- 
 ing detained tlie same until he became bankrupt, 
 his assignees afterwards refused to deli\ er it up. 
 The bill was therefore fded by the plaintiff for 
 that purpose ; but the Master of the Rolls 
 thought the Court had no power to interfere, and 
 the bill was dismissed. Now, in both of these 
 cases, we perceive that the forms required by 
 the registry act had not in fact been complied 
 with; and all, therefore, that was decided by 
 the Court was, tliat it could not dispense with 
 those fonns merely on equitable grounds, or 
 acknowledge any title unsupported by the pro- 
 ceedings made a])solutely necessary by those 
 acts. In the principal case,* however, now 
 under our consideration, all the requisites which 
 the acts prescribe on the transfer of a ship then 
 at sea, had been complied with : it only re- 
 mained, that a memorandum of the bill of sale 
 
 * Thompson v. Smith, 1 Mad. 
 D
 
 34 Klfa't of the JiCgt^try Act^ [chap. ii. 
 
 should 1)0 indorsed on the certilirate (►f the rei^is- 
 ter within ten days after the return ol'th<' sliip ; 
 and to procure this to hv. done, and to pri'vent 
 a similar fraud to tiralwliieh had heen j)ractised 
 in tlie cases referred to, ^^as the ^ ery object of 
 the bill. It was the opinion, therefore, of the 
 Vice-Chancellor, that tliese cases did not in any 
 wise a})ply to that before him; and, by i^ivinj;- 
 the relief sought for by the bill, his Honor in 
 fact decided, that that })oint on wliich these 
 cases had been endeavoured to be put, viz. that 
 there could be no such thinp; as an equitable title 
 to a ship, was a proposition not to be sup])orted. 
 Upon this point, indeed, he expressly stated his 
 opinion, that there was nothini:; in th<' reu;istry 
 acts which crippled the arm of a court of (Mjuity; 
 and to say there could not l)e an equitable title 
 to a ship, his Honor t]iou<;ht, was to contradict 
 the very words of the act itself.* 
 
 The other propositi<Mi, liefore alluded to as 
 attemj)ted to be suj)ported in this case> viz. that 
 since the rej^istry acts tlierecan be no such thing 
 as an Cfjuity oJ'rc(lcj7iptio)i in a ship, apj)ears to have 
 beenhrst brought forward uj)on tliisoccasion; and 
 seems, indeed, as before remarked, to liave arisen 
 out of, and as a corollary to, the proposition we 
 
 " ;Jt (iio. 3. c. (JJ3. s. 14.
 
 CUM'. 11. J iipo)i A/orlgr/gcs of S///p.s\ fy\ rio 
 
 li;i\ r jilrcady oxaniiiifd. Il, indeed, tlie decision 
 of" tlie \ ic«>-('liaii( cllor in Tlionjpson v. Sinitli is 
 now to be considered as indisputable, and tliat 
 ail e(jMital)le title to a shij) may exist as distinct 
 IVoni tliele<2;al title, notwithstanding- the registry 
 acts, it is very diflicult to imagine upon what 
 grounds it can he maintained, that there can be 
 no valid mortgage of a ship. His Honor, how- 
 ever, went very fully into this point also, and 
 remarked, that the power of mortgaging shij)s 
 existed before the acts in question, and that they 
 had not taken that power aAvay : that there was 
 nothing in the reason, the letter, or tlie spirit of 
 them, which prevented a mortgage of a ship, pro- 
 vided the proper forms were observed ; and that 
 a mortgage of a ship was just as good as the 
 mortgage of any other chattel. And afterwards, 
 in giving liis fmal judgment n|K)n the case, his 
 Honor declared, that the mortgage of a ship was 
 like the mortgage of any other chattel, and sub- 
 ject to all the principles laid down in courts of 
 equity relative to such mortgages. It seemed to 
 him, he said, an alarming proposition, that if a 
 ship worth .£ 10,000, ^^as mortgaged for £lOO, 
 there was no other than an honorary engagement 
 to return the ship on repayment of the £100 ; 
 and therefore if, in such a case, the mortgagee 
 became bankrnpt. his assignees might claim the 
 absolute right to the shi[). That belore the re- 
 
 V 2
 
 36 J\ff'^'ct of the JiCi^n.^tn/ Acts [chap. ii. 
 
 gistry arts ships nui:,lit li:i\r Ixtn, and con- 
 stantlv \M'rr, in(>rtu;agt'd, ami \\\v I'ltn' transfer 
 of" j)ro|)t rty had ahvays hccu t'liconram^d ; and 
 that the registry acts nncic intended lor the hc- 
 netit of Britisli owners, and of trade and com- 
 merce; l)nt if it wvvv true that tliey operated to 
 deprive the owners of their former ri^ht of rais- 
 ing money l)y mortgage, the conse<juences to 
 commerce wouhl he most injurious and alarming. 
 His Honor then remarked, that such a pro[)Osi- 
 tion, publicly stated, called for immediate repro- 
 ])ation, and that it was totally without founda- 
 tion. That the acts only meant to confine the 
 ownership of ships to British subjects; and were 
 not intended to have any effect on t!je right of 
 mortgaging; and expressly declared, that a 
 transfer by mortgage made know n to the public, 
 and confined to British subjects, was within the 
 sj)irit of the acts ; nor was there any thing in tiie 
 letter to confine the transfer to an absolute sale. 
 That ever since the passing of tlie 7th and 8th 
 William, and the more recent statutes, it ap- 
 peared, from many cases in law and in equity, 
 to have been admitted that a ship might be 
 mortgaged, and that no dou])t had ever been 
 suggested on tlie sul)ject. His Honor afterwards 
 goes on to explain at large the proper mode of 
 effecting a security by way of mortgage upon a 
 ship, whether in port or at sea ; and Oiice more
 
 (iiAi». II. j Upon jMor/gagcs of Ships, <S^c. 37 
 
 declares it to be a mistake to suppose, that tlx' 
 owner of a ship eannot make any transfer of 
 property tli<M(Mn, without parting entirely and 
 irredeemal)ly with all his interest. 
 
 CHAP. 111. 
 
 Of the Klfat of the Rcgistrt/ Jets ttpon the Interest of 
 Creditors iti Battkniptcij ., and of the stat. 2\ Jac. 1. 
 chap. 19. 
 
 It will be necessary now^ to advert to a class of 
 cases that have occurred relative to the due or 
 defective compliance with the forms of the re- 
 gistry acts, as affecting the interest of creditors 
 in bankruptcy ; and the examination of these 
 cases will lead us to observe how far a strict 
 adherence to the rules and regulations enjoined 
 by these acts would interfere with and render 
 nugatory some of the provisions of the statute 
 of James 1., made for the relief of bona fide cre- 
 ditors ag-ainst tlie secret and fraudulent acts of 
 their bankrupt debtors. 
 
 In tlie case of Curtis v. Perry,* which came 
 before the present Lord Chancellor in 1802, 
 
 * OVesey, TM).
 
 38 Effect of the Resist rjj Acts [( ii m'. hi. 
 
 Nantes, beinp; in partiuisliip with Clii^wcll, in 
 1796 purchased several ships, and j)r()(iired 
 them to be duly registered as liis sole ])roperty. 
 On the 3d of February, 1797, Chiswell died ; 
 and on tlie 11th of the same month, a (ommission 
 of l)ankrnpt issued against INantes as the sur- 
 viving: partner. Under an order in the bank- 
 ruptcy the plaintiffs, \vlu> had suj)plit(l some of 
 tlie sliips with stores, &c. proved their debts 
 upon the separate estate of Nantes ; but a claim 
 having been made to the sliii)s by the joint cre- 
 ditors of the j)artnership, the bill ^^as filed by 
 different parties, some of whom having supplied 
 the ships with stores, and others as ship- 
 builders, had become creditors in respect of the 
 ships, praying, that they might be declared to 
 be the separate estate of Nantes, and therefore 
 applied in the payment of his separate creditors. 
 This claim was resisted by the defendants, the as- 
 signees under the commission, upon the ground 
 that the ships had been paid for out of |)artner- 
 ship fvnids, and the earning and |)ronts placed to 
 the partnership accounts, of which facts conclu- 
 sive evidence was given, "^riie Lord C'iiancelhu-, 
 however, conceived that the cascciinir ^^illlill 
 those of HibberttJ. Rollestonand Camden v. An- 
 derson before noticed,* :»nd tliiit tlic !t •^:d pro- 
 
 Sec |»Hgt s '} iind i», siijda.
 
 CHAP. III.] Upon Creditors i)i Bankruptcy, S^c. 3.0 
 
 perty in the ships beinj*- in Nantes solely, it ou^ht 
 to he (listrihiitcd amonu:st his se|)arate creditors. 
 It was furtlicr contended on hehalt" of the defen- 
 dants in tliis tase, that the ships liavinj^ ]>een in 
 the order and disposition of the partners Chis- 
 well and Nantes, they ou«i,ht to have been con- 
 sidered as their joint j)roperty by the operation 
 of the statute of James 1.* Ilis Lordship, how- 
 ever, admitting tliat, if the fact had so been, 
 that arpiment mii^ht {)ossibly have been sus- 
 tained, was of opinion that it did not appear, 
 from the circumstances of tlie case, that the 
 ships had been in the order and disposition of 
 both partners, so as to bring the case under the 
 last-mentioned statute. The decree, therefore, 
 declared the shi[)8 to have been the separate pro- 
 perty of Nantes, and directed it to be distributed 
 amongst his scj)arate creditors as such. In this 
 case we perceive there was no conflict as to the 
 operation of the different statutes, inasmuch as 
 there was no evidence! ])efore the Court of the 
 
 • 2lJ;ic.l. c. 10. s. 10, 11. 
 
 t From tlie report of the case it certainly appears, that evi- 
 dence was entered into by both parties on this point ; but the 
 Lord Chancellor was of opinion, that nothing: had been 
 brought forward by the defendants for the purpose of shewing 
 that their ships had been dealt with as partnership property, 
 sufficient to overthrow the presumption arising from the fact of 
 their havini: been resfistered in the name of Nantes alone.
 
 40 Effect of t lie Ri^islrij Acts [( hap. hi. 
 
 vessels liavinu ')i't'n ostcnsildy eoiisiclired, or 
 dealt with, as partnership property. 
 
 The next case, however, Ex parte Yallop,* 
 expressly called for the derision of the Court 
 upon this important point. The rpiestion in 
 
 His Lordship further remarked, that for tlio purpose of con- 
 sidorinsr tlic ships as the joint propfity of the partnership, under 
 the o])eration of the statute of .lames I., they must have been 
 in the order and disposition of both partners at the time of the 
 bankruptcy; but that, in fact, by the previous death of Chis- 
 well, the ownership must, at the date oftlie bankruptcy, have 
 been with Nantes only. 
 
 From this latter circumstance it would seem, that there had 
 not been any occasion to have j^one into evidence for the pur- 
 pose of proving in whose order and disposition the ships had 
 been previous to the death of Chiswell. Evidence of this na- 
 ture havinir, however, been stronsjly relied upon ; and a fur- 
 ther inquiry, indeed, having been directed by tiie Court during 
 the progress of the case to be made, with a view of establishing 
 this point, (from which inquiry, however, nothing seems to 
 have resulted) ; we must naturally conclude, that his Lord- 
 ship's judgment would hfive been influenced by such evidence; 
 and that had it been shewn that the ships had, in fact, been 
 in the order and disposition of both partners, the decree would 
 have directed the property to have been distributed amongst 
 the joint creditors. In this way of considering the casi; of Cur- 
 tis t'. Perry, it seems to be an authority to shew that the rules 
 and rcculations of the registry acts eannot be strictly enforced 
 iindt I < IK iintstanees in which their observance would niiiilate 
 against the principles oftlie sliiliilc of. fames.
 
 CUM'. Ill] upon Cnditors in Baiikruplcy, S^c. 11 
 
 fact l»tiiiu", \\lH'tlH'r the regulations of the regis- 
 try acts should hv. re(|uired to he literally fol- 
 lowed, under eircninstances in m hirh they must 
 necessarily supersech' the j)ro\ isions of the sta- 
 tute of .lames 1., nr wliether these; provisions 
 were to he considered as still in force, when, if 
 carried into effect, they must so far defeat the 
 ohject and intention of the latter acts. 
 
 The sliip J!luphrates liad l)een jiurchased hy 
 Cook and Iler!)t'rt, rarryini;' on Inisiness to^2,'e- 
 ther iu partnersliip as mercliants, out of the 
 partnersliip funds, hut had been registered in 
 the name of Cook only. A joint commission 
 afterwards issued aii;ainst Cook and Her])ert; 
 and it aj^peared that l)()th partners, in all re- 
 spects, except as to the registry havinjc been 
 made in tlie name of Cook only, had been in the 
 visible ownership of the vessel ; so that under 
 the statute of 21 James 1. it must have been con- 
 sidei'ed as the property of tlie assignees under 
 the commission, and divisible amongst the joint 
 creditors of the bankrupts, unless the registry 
 acts, witli respect to property of this nature, 
 were to be considered as liaviug repealed that of 
 James, Tiiis case came before the Court uj)()n 
 the petition of a joint creditor of the l)ankru|)ts, 
 and was chiefly supported u})on tlii>: uround, 
 \iz. tlie \ f^ssei's ha\iim" alwavs hen in f!>e rnvh^r
 
 \1 EjJ\'ct of Uic Rc::U/n/ Acta [cn.\r. iii. 
 
 and disposition of ludli the bankrupts; that 
 beinj;' tlir only j)oint, indeed, l»y \vlii(li it ccndd 
 \\v\\ \n' distini;uished from that of the late case 
 of Curtis V. Perry. The Lord Chancellor, how- 
 ever, was of opinion, that as Herbert himself, 
 nnder the circumstances of tiie case, could have 
 had no ( laim auainst his ))artner, so tlie joint 
 creditors of tlie partnership were not in a better 
 situation to su})})ort their claim under the sta- 
 tute of James, as a<;ainst the separate estate of 
 Cooke, llavinu; first declared, tliat no dealing 
 in respect to the sliip could make it }>artnership 
 property as between the partners, as that w ould 
 be a direct infrini!;ement of the acts of Parlia- 
 ment, his Lordshij) stated, that a distinct (pies- 
 tion arose, whether, though it could not be so 
 taken as between the partners themselves, the 
 ship, if dealt with in that manner, ons^ht not, 
 upon the statute of King James, to be consi- 
 dered as partnership pro})erty ; w hether it was 
 so held, that the joint creditors could say it was 
 partnership projx'rty i)efore tlu; bankruptcy ; or, 
 on the other hand, the title being of a public 
 register<(l n;iture, th;»t |)ublic registry must not 
 decide, as among all mankind, where the pro- 
 perty was. His Lordship then declared his 
 o|>inion, that the registry was the evidence of 
 the prnjKiiy, and nmst be taken to be the evi- 
 dence (-fit < v<n among tlie creditors, and there-
 
 (n.\p. 1 11.1 upon Crcditor.s ill BiDikniptcij, S\c. 13 
 
 loir dismissed \\\v petition; lint at tlic saiiK; 
 time declaiM'd, tliat lie slioiild not refuse tlie 
 jiarty the liberty of filinii" a hill, if he should 
 tliink lit. TJie jiid^inent, lioweNcr, seems to 
 liave been aequiesced in, as no hill appears to 
 lia\e hccn l)r()ni;ht; and the case \\ as shortly 
 after^^ards recoi^nized and eontirmed hy that of 
 E.V parte \\o\vj^\\ion* ^vhere the Lord Cliancel- 
 lor (considered the rejjcistry of a ship as comdu- 
 sive evidence of the property, against the cre- 
 ditors of the former owner, \vho had continued 
 in the possession from the time of the assign- 
 ment to tiiat of his l)ankruptcy. 
 
 Tlie principle upon Avliich these three last 
 cases, of Curtis v. Perry, Ei' parte Yallop, and 
 E.v parte Houghton, were decided, certainly 
 tends very much to support the doctrine, that, 
 upon a contract for the mortgage of a ship, there 
 can be no equity of redemption ; ])ut that, on a 
 transfer accompanied by the forms of tlie regis- 
 try acts, the ship becomes the absolute property 
 of the intended mortgagee ; inasmuch as the 
 ground of the decision of these cases is the suj)- 
 posed incompatibility with these acts of the ex- 
 istence of any equitable interest against the })arty 
 appearing to be the legal owner upon the face of 
 
 * 17 Vts. ibi.
 
 44 Ff/cct of the Rightrji Acts [vuw. iii. 
 
 tlir rt'iiisttr; tht' autlioiity, liowcvtT, of tliese 
 cases, seems to have been much shaken, if not 
 entirely overturned, })y some subsequent deri- 
 sions which have occurred in the courts of law ; 
 and ^\hi(•l^, tlierefore, we nuist now proceed to 
 examine. 
 
 The first of tliese isINIair and others, assijjnees 
 of T. Mair, a bankrupt, v. Glennie and others, 
 the assi^jnees of Sharpe and company, bank- 
 ru})ts ;* w herein it w as decided, that a bill of 
 sale of a ship then at sea, upon which no ques- 
 tion arose as to any defect in the transfer for 
 non-compliance with tlie forms of the rejj^istry 
 acts, was not efi'ectual to pass the j)roj)erty, the 
 vessel continuiui:: under the order and disposi- 
 tion of the original owner up to the time of his 
 becoming a bankrui)t. In this case, indeed, the 
 counsel, whose duty it was to support the bill of 
 sale, never attempted to rest their case u|)on the 
 force of the registry acts ; but only endeavcMired 
 to shew, that, under the circumstances of the 
 case, the party claiming under the bill of sale, 
 w hich had been executed to him, was not bound, 
 nr was not able, to have taken possession of the 
 ship ; and, thcnjhrc, that the bill of sale was 
 n<»t v(>i<l under thestatnte of *J1 .Tac.l. Nor did 
 
 J M,iiilt .V Sflwyn, 2 1<>.
 
 THAI', in.] Kpon Crcdit07\s inBanki^iiptcy, 8^r. 4'> 
 
 the Court, in f^ivin*^ tlieir judgment, seem lo 
 consider the registry acts as in any manner con- 
 fhcting- with that of Jac. 1., but decided the case 
 uponthe point u})on uliieh it had been argued. In 
 the next case, however, which we have to men- 
 tion, the question, whether a party claiming under 
 a bill of sale, duly executed according to the re- 
 gistry acts, ])ut without having taken possession 
 of the ship, can protect himself against the cre- 
 ditors of tiie vendor (a bankrupt), claiming un- 
 der the statute of 21 Jac. I., was expressly 
 brought before the Court. The circumstances 
 of the case, as far as they ajflect the present 
 question, were as follow.* Robinson, Clark.son, 
 and Parker, being owners of the slii}) A\'arre, 
 which was then at sea, executed a bill of sale 
 of the shij), and her freight and earnings, to 
 Messrs. Sharps, as a security for such advances 
 as had then been, or might afterwards be, made 
 by them ; and upon the return of the vessel into 
 port, it w^as duly registered in their names, and 
 all the forms of the act complied witli ; but 
 Robinson and company continued to exercise all 
 the ordinary acts of ownership. Both Robinson 
 and company, and the Sliarps, afterwards be- 
 
 * RoLiiison v. M'Donnell, Stlw. N. P. 1142 ; since reported 
 in 5 Maule & Selwjn, 228.
 
 4(i ^\//^'^'^ l)J the Ri^l.shlj y/(7.y [(HAP. 111. 
 
 caiiK' ])aiikru|)ts ;* and at Uie prriod of the 
 ])aiikrii|)t{'v oftlie t\>() houses, tliere uas a debt 
 <hi(' from the former to tlie latter, exceediiiij^ the 
 value of tlie shij) and cargo. L luK r these cir- 
 cumstances, a question arose as to llie tith' to 
 the proceeds of tlie sliiji and frei_i>lit, between 
 their resj)ective creditors; and the Court of 
 Kin«;'s Bench was of opinion, tliat the case fell 
 ^vithin tla- statute of 21 .lac. 1., and that tlu^ cir- 
 cumstance of Robinson and company havin«>- 
 been the ostensible owners, must prevail a<rainst 
 the rei;istry acts. Tlie lannuaive made use of by 
 Lord Elh'nl)()rou,i;h, in j;i\iu;L;" tlie ju(li:;ment of 
 the Court, is extremely important, and deserves 
 niiuli consideration. After obscrN Iml::, tliat the 
 case was most plainly within all ihv, miscliicf 
 intended to be remedied by the statute of .lames, 
 and was one of the stron.u:<'st cases tliat had 
 arisen u])on tliat statute; his Lordshij) declared 
 the opinion oftlie (,'oint to be, that the registry 
 acta did not repeal the statute of Jmues ; that tlu'y 
 ^^('r(' |)asscd for |>nij»<)S(s ol |)nblic policy, and 
 
 * According to tin- statenu'iit <iivcii in ilic n puil «(t iliis casr, 
 tlio Sliarps IxcaiiM- I);mkiii|ifs iKfoir K()l)iiisoii aini ( <iin|i;iiiv. 
 JIail tliiir assiutK ts, llirrcforc, taUcii poss* .ssioii <it the ship 
 pn-vioiis lo tlif l>aiiki ii|it< N dI tin liilli i , iIk \ iiiii:lil liavr inaiii- 
 taiiicd tliat |)()ss(>>i()ii a[;airi->l llic assi-^ni <s dI IJoljin-^on ainl 
 cuiii|>aiiy.
 
 tn\i'. HI.] upon Crcditor.s i/> BfUihruplcij, S^-r. 17 
 
 tlial iIm' mcasiii-cs adopted for cflVctin,!;- llial 
 ol)ji'ct wvYv. such, lliat <'\t'ry ])<;rsoTi claiinin^ 
 title tlnoii^li the medium of a conveyance, a.s the 
 act of parties, must shew a conveyance of tlie 
 form and character prest^ribed hy tliose statutes. 
 Tliat the phiintiffs (the assignees of Robinson 
 and company,) did shew an original title in the 
 bankrupts, whom they represented, grounded 
 u|)on such conveyances, which title had not 
 been divested as against them (they being the 
 representatives of the general body of creditors) 
 by any other conveyance. It was admitted, his 
 Lordship said, that deeds alone, in the case of 
 an unregistered ship, would not have that 
 effect; and the Court were of opinion, that tlie 
 registration and new certificate could not pro- 
 duce it. His Lordship then further remarked, 
 tliat these statutes did not affect titles passing- 
 bi/ operation of law, as to executors or adminis- 
 trators, in case of death, or to assignees gene- 
 rally, in case of bankruptcy ; — that in these 
 cases, a title might be transmitted without any 
 of the forms required by the statutes ; and that, 
 if a title might be transmitted without these 
 forms, in cases of bankruptcy generally, the 
 Court saw no reason why it migiit not be so done 
 in a particular case, falling witiiin the scope and 
 operation of the statute of James, though these 
 forms liad licen conn)lied with in a conveyance
 
 40 Effect of lltv Rcgistri/ Jc/i [( fiai'. hi. 
 
 to another, that is to say, to tlu^ Sljarj)s ; sucli 
 convryance ln'ini;' iVau^ht uitli all tlu' iniscliicf 
 \\lii(li that statute was meant to prevent. — Tliat 
 the reiiistry acts made certain forms necessary 
 to the validity of transfers and conveyances, 
 which antecedently would have been good and 
 valid \\ ithout them ; hut that it was never in- 
 tended hy tlie legislature, that a compliance 
 with these forms should i^ive validity to a trans- 
 fer and conveyance, which antecedently would 
 have been bad and invalid; and that the Court 
 were of 0[)inion, that such an effect ought not 
 to be attributed to thcMU. The bill of sale, 
 therefore, ^\llieh had been executed by Robin- 
 son and company, to the Sharps, was declared 
 to be void as against the assignees of the Cornier; 
 and judgment was given for tiie plaintiffs, both 
 for thr shij) and freight. 
 
 The same cpiestion slmrlly aficr\\;ii-ds eanie 
 again b(>fore the Court <»(" Kings licnch," when 
 the eonnscl foi" tlic (hlciKhint, that is to say, 
 the party claiming under the registry acts, 
 against the assignees of a banlvrui>t, who had 
 executed the assignniml, but had continued to 
 receive the profits ol the ship, and to exercise 
 all the usual acts of ow n( r-hip, niidrr an agree- 
 
 ♦ lluy i. I-aiili;»iii. l niuii.c'v ALL i;>:}.
 
 CM VI'. iii.l upo)i Creditors ill Bai/hrftptri/, ^r. 4U 
 
 iiu'iit ovprossed ill tlir hill of s;ilo, admitted tluit 
 lu^ roiild not (listinmii.sli tlu' cas(; from that of 
 Hohinson r. M'Domu'll, and jwdj^ment was 
 cous{'(|[U(Mitly j;i\('n for the plaintills. 
 
 This rase camn afterwards liefore tlie Court 
 of lv\rhe(juor Chamber, on a writ of error,* 
 M'hen it was contended, on the behalf of the 
 plaintiffs in error, first, that there was not suf- 
 ii<i(Mit e\ idence of reputed ownership in tlie 
 ])ank.rupt ; and secondly, that the j)Ossession of 
 the bankru[)t, at the time of the bankruptcy, 
 could not constitute a reputed ownership under 
 the statute of James ; inasmuch as, by the re- 
 gistry acts, no one can be reputed owner, but 
 he who is registered as such. Upon the first 
 ])oint, the Court were of opinion, that it was 
 impossible to conceive a stronger case of appa- 
 rent ownership, continuing up to the time of the 
 bankruptcy ; and Mr. Chief Justice Dallas, in 
 giving his judgment, therefore remarked, that 
 the real question was, whether the registry acts 
 operate as a repeal of the statute of James 1. ; 
 and then went on to observe, that these acts 
 were made with a view to very different objects. 
 — That the registry acts related only to trans- 
 
 * INTonkhoiisr and others, assionees of Matthews, a bank 
 nipt, 1 Brofl. ov Binn. 11 1. 
 
 £
 
 •50 F.ffcct of the /»\';'/.v/r// Acts [chap. hi. 
 
 actions hetween vendor and vendee ; — to cases 
 of real o^vne^shi^) : — that the statute of" James 
 Mas passed to prevent tradesmen from l>einj>^ in- 
 jured hy false credit, derived from apparent or 
 reputed^ownership : — that the case of a|)parent 
 ownership Mas, by the very term, opposed to 
 that of real ownership, and therefore could not 
 fall Nvithin the purview of the registry acts. 
 His Lordship then expressed his aj;;reement m ith 
 Lord Ellenboroup,ii, that these statutes did not 
 affect titles passing by operation of line, as to 
 execntors, or administrators, in case of death, 
 or to assignees generally in case of bankruptcy ; 
 the judgment of the Court of King*s Bench Mas 
 therefore affirmed. 
 
 The qnestion Mhether the statute of 21 Jac. 1.,. 
 or tlie registry acts, shall prevail nnder circum- 
 stances Mhich, according to the ojxration and 
 effect of the former statut*'. Mould place the 
 property in the assignees of the l)ankrupt ; Vmt 
 M'hich, according to the letter, if not to the 
 policy, of tlie latter statute. Mould be the j)ro- 
 perty of the registered owners, seems to have 
 been completely set at rest by these cases. In 
 all of them, the question, as Me have seen it 
 stilted by Lord Elleiiborough in Robinson v. 
 M'Donnell, and Mr. Ciii<f ,histi<-e *>allas in 
 Monkiiouse V. Hav, reallv was, whether the 
 
 f
 
 (•[I A p. iii.j upo)! Creditors ni IhDihriiplcij, t^r. '>1 
 
 registry ads opnatc as a rcjX'al of tlie statuUi 
 of .laiiirs ].; and {\\v case in the Exchequer 
 Cliainher eonlinuin*;- those of llohinson v. 
 M'Donnell, and Hay v. FairlKiin, for there-con- 
 sideration of uliicii it was expressly brouj^ht 
 before that Court, lias decided the neg:ative of 
 tiiis projxjsition. It is worthy of remark, how- 
 ever, that althouf;h these cases at law seem so 
 completely at variance with those in equity, as 
 to set aside the operation of the registry acts, 
 under ciicumstances in which the Court of 
 Chancery had considered them as imperative ; 
 yet there is a principle to be taken into consi- 
 deration in the foUowinji; chapter, by which all 
 of these cases may perhaps be reconciled with one 
 another, and which demands our particular at- 
 tention, as affecting the immediate object of our 
 inquiry, viz. the existence of a power of re- 
 dem[)tion under an assignment by way of mort- 
 jjage. For, if the cases that have been deter- 
 mined at law are not, in any manner, to be re- 
 conciled with those in equity, it seems to follow, 
 that they %o a great way towards declaring- that 
 such a power may exist, if they do not altoge- 
 ther decide the question in the aflirmative. In 
 fact, they shew that an equitable interest in a 
 ship, notwithstanding the statute of 34 Geo. 3., 
 can exist independent of, and distinct from, the 
 legal estate, and even in contradiction to the 
 
 E 2
 
 ^'rl l^lstinctntn between Thhs ar'is'nig [chap, iv 
 
 ertificate of the ro«;istr\ ; upon the nojj^utive of 
 wliich proposition only, the doctrine, that there 
 can be no effective uiort«;a»e of a ship, has been 
 endeavoured to he maintained. 
 
 CHAP. IV. 
 
 Of the Disttnction betneen Titles arising from the Acts of 
 Parties, or merely by operation of Law. 
 
 A DISTINCTION has always been taken between 
 titles arisinp^ from the acts of the parties them- 
 selves, and those which have their ('fl'ect merely 
 by operation of law. It is remarkal)le to ol>- 
 serve, how cautious the prc^sent Lord Chancellor 
 has been in delivering his oj)inion upon this 
 part of the subject. In Curtis v. Perry * hesay», 
 '* I desire it to be distinctly understood, that I 
 •* f^ive no opinion whatsoever upon the elVect of 
 *' those two acts of Parliament [ in cases of 
 ** trusts implied liy law, and not arisinj:^ out of an 
 *' act in which the contnictin«j; parties join. It 
 " is unnecessary to say any thin^- u|)()n that, 
 " farther tiian tlial, in a <;reat variety of cases, 
 
 • C Vfsry, 746. 
 
 t The 2U(jl(>o. 3. r.(>(). :tnd :J1 Gpo. 3. c. G8.
 
 fHAF. jr.] from the Acts of Parties, S^c. 53 
 
 *• the intorosts of mankind would require the 
 *• Court to consider loiij]^ before they should 
 ** say, those statutes would prevent trusts iin- 
 ** plii^i, or arisin::; by operatioji of law. But in 
 " tiiis instance, 1 am relieved from any necessity 
 '* of determining:, either that the cases whicli 
 " have been decided are right, or of considering 
 *' what ouji-ht to be the decision upon that sort 
 *' of case which 1 have just noticed." In the 
 next case, however, that of E,v parte Yallop,* 
 we have the benefit of that opinion which his 
 I^ordship expressly withheld in the case of Cur- 
 tis V. Perry : " There is a wide difference," he 
 says, *' between title set up under the contract 
 ** of the parties, and under the operation of 
 " law, or the act of God ; and that is autho- 
 •' rized by a fair construction of the act of Par- 
 *Miament/' Speaking of transfers, " The act," 
 he says, " could not be intended to apply to 
 *' tran^ferK, which could not be carried through 
 " in the mode, and by the means prescribed by 
 " it ; a transfer, for instance, from a testator to 
 " his executors, or the transfer to assignees in 
 '♦ bankruptcy. The next of kin, or residuary 
 *' legatees, take by operation of law ; not under 
 *' a contract for transfer, capable of being car- 
 *' ried into execution in the mode prescribed. 
 
 * ]■> Vos. <>1U
 
 54 Distinction Intxccoi Titles arising [( hat. iv. 
 
 " A traiislVr ol" that dtscription, tlu rcforc, is 
 ** not that species of transfer, the reuuhition of 
 " >\hi(h was in the eonteniplation of the l.eiiis- 
 " latnre." And in Ea^ parte llonjihton,* after 
 notieincf the case of Camden c. And(M*s(>n in the 
 K in i::"s Bench,'! liis Lonlshij) remarks, tliat that 
 decision appeared to him to strike directly at 
 the root of all trusts arisinii;, not hy acts of the 
 parties merely, but also by opcM-ation of law; 
 and he thought it very difficult to reconcile that 
 with other determinations n})on the case of 
 assiji;nees nnder a commission of bankruptcy, 
 executors, administrators, or next of kin, hav- 
 ing an interest nnder the title of administrators ; 
 and that it was difficult to maintain that there 
 could not be an equitable interest in a ship. 
 
 Now, we perceive this same distinction was 
 expressly taken, as well by Lord I'^llcnboiounh 
 in Robinson v. McDonnell, t (whi( h ;ii)p<:irs to 
 have been recognized by the Court of Kind's 
 Bench in Hay v. I'^iirbaiuj^) as by LordCMiief 
 Justice J)allas in Monkhouse r. IIay.|| In the 
 first case Lord lill(>nl)oroui;h says, " l'^\<'ry j)er- 
 •' son claiming title through tin- uk diiiiu of a 
 
 * 17 Vc's. 2.>:J. t oTtiiii l{(|). 7(»i>. sii|irii. pace 9. 
 \ S(-lw. N. W 1 1 IJ. :■ •-• IJ;iiii. A ,\'(1. IIKJ. 
 
 II -1 Biud. A JJ.ii-. Hi.
 
 CHAP, w.'] from the Acts oj' Parties, c^c 55 
 
 ** convevanr<; as the act of the parties, must sliew 
 " a convcyaiict; of the form and character prc- 
 ** scribed by these statutes." And again, "These 
 •' statutes do not affect titles passing by operation 
 ** of law, as to executors or administrators in 
 •' case of death, or to assignees generally incase 
 ** of bankruptcy. In these cases a title may be 
 " transmitted without any of the forms required 
 *• by the statutes." And in Monkhouse v. Hay,* 
 the Chief Justice expressly declares his agree- 
 ment with this doctrine. The result of the 
 w hole, therefore, appears to be, — not that there 
 has been any real difference of opinion between 
 the courts of law and of equity, as to the effect 
 of the registry acts as opposed to the statute of 
 21 Jac. 1. ; for all the cases agree in this, that 
 the former acts do not aff'ect titles passing by 
 operation of law ; but that, what has been con- 
 sidered by the Lord Chancellor as an act of the 
 party himself, by the courts of law has been 
 taken as having its effect by operation of law. 
 And Lord LUenborough strongly intimates his 
 oj)iuion to this effect. After observing, that a 
 title may be transmitted without the forms re- 
 quired by the registry acts in cases of bank- 
 ruptcy, generally, liis Lordshij) remarks, that 
 he sees no reason wliy it may not be so done in 
 
 * 1 liru.l. cV liiim. 1-JO.
 
 •50 Distinction betxccen Titles arising [chap. iv. 
 
 a particular case, falling within the scope and 
 operation of the statute of James, though these 
 forms have been complied m ith in a conveyance 
 to others.* And in the last case, of Monkliouse v. 
 Hay, Mr. C'liief.Iustice Dallas more e\])ressly de- 
 clares the same opinion. This is the true ground, 
 he says, on which tliese cases are distinguish- 
 able ; we are not now considering the case as 
 between vendor and vendee, l)ut as between an 
 assignee by operation of law, and an owner 
 (that is, a juirchaser), who lias permitted the 
 bankrupt to retain the vessel in his order and 
 disposition. t 
 
 The real difference, therefore, between those 
 cases that have been decided at law and in 
 erpiity is tliis : at law, it has been held, first, 
 that the registry acts do not affect titles pass- 
 ing, not by the act of the parties themselves, 
 but merely by operation of hiw ; and then ob- 
 serving, that the title of tlie assignees of a 
 bankrupt must arise, if at all, by operation of 
 law, it seemed to follow, as a consecpience of 
 this principle, tliat their title must, in those 
 cases, pr<-\ail against that of the j)arti('s chiim- 
 ing under the registry arts. TIh' courts of 
 erpiity admitting the doctiinr, that these sta- 
 
 • Selw. N. P. 1142. t 1 Bind. cV Bins. 121.
 
 c:HAr. IV. J from the Acts ij' Parlies, ^c, 57 
 
 tutcs <1() not aflrct titles arisinu; hy oiKTation of 
 la\v ; and admittiiiii, also, tliat the title of the 
 assignees otu hanknipt (if any) must be said to 
 arise hy o})eratiou of law ; seem to have consi- 
 dered the question in all these cases to have 
 been, whether or no the assignees had any title 
 at all.— That it was merely beggini^the question 
 to say, that the title of the assi,ij;nees arose by 
 operation of hnv, Avhen tlie real question was, 
 wiiether they had any title or not ; and that the 
 title of the assignees must hkt considered as 
 having come too late, not having its commence- 
 ment until after the legid estate had become 
 absolutely and irredeemal>ly vested in the pur- 
 chaser, by virtue of the registry acts. 
 
 A case, however, has lately occurred in bank- 
 ruptcy, if the accuracy of the report can be 
 relied upon,* in which the authority of these 
 cases at law seems to have been fully admitted. 
 It is to be remarked, however, that this case, 
 although only lately given to the public, 
 arose previously to the two last-quoted cases at 
 law, \iz. that of Hay r. Fairbain,! in the Court 
 of King's Bench, and Moiikhonse r. Hay,| in 
 tiie Excliequer Cliamber. 
 
 * Ex paiU Hiini. 1 .l;ic. cV \V.ilk. :i7i< ; sic note. 
 t 1 Bhiii. (.V AM. iy:3. : 2 iirutl. lV Bin-. 114.
 
 ,j8 Distinction hcthccu Titles arisinii; [( hap. iv. 
 
 A joint ciminiission had issiird nu;ainst John 
 (ioodcliihl the el(l(T, John (ioothhild the 
 yonuu,«r, and others, under Avhich they were 
 fotmd hanknipts. It ai)peared that the (iood- 
 cliihls liad carried on business toji;ether as liine- 
 niereliants, nnder the firm otCioodehild and son. 
 At the time of tlie l)ankrnptcy, twenty-seven 
 ships had been employed in the lime trade, all 
 of which had been rei^istered in the name of 
 J. Goodcliild tlie younj»:er. It furtiier appeared, 
 that J. (joodchild tlie elder had, by deed dated 
 in April 181'i, assigned to (jloixbhild the 
 younger six sliips, of whieli he was the sole re- 
 gistered owner, and his moiety of four others, 
 which were registered in the joint names ; the 
 assignment was expressed to be in considera- 
 tion of natural love and afl'ection ; and it was 
 asserted to have l)een made only for the purpose 
 of saving the elder (Joodchild the trouble of 
 attending tlie Custom-house. l-^iglit of the 
 ships thus assigned were in the trade at the 
 time of the bankru[)try ; the other nineteen had 
 been purchased, or built and paid for, out of 
 the. funds of the firm of (ioodcliiid and son. 
 'I he two Cioo(b'liil(ls were equally interested in 
 the business ; ))nl the ca|)it;d li;i<l been a(l\aneed 
 )>y the fiilher. 'Tlie object iA i\\v jxtitiou was 
 \n h:i\c Hie juoceeds of the \essels included ill 
 the assignment nf April IHPi, declared to be
 
 MI \p. IV.] from the Acts of Partks^ S<^c. .>.9 
 
 part of \\\v separate estate of the elder (iood- 
 eliild, as li;i\iiiii- Ixcii assigned without snjfi- 
 <i<'nt consideration; or that tlie proceeds of all 
 the twenty-seven vessels ininht he declared to 
 1)6 part of the joint estate of the two Good- 
 childs. The cases of llohinson x. iM'J)onnell,* 
 and Mair v. (>leniiie,'|' were cited, as conflicting 
 with those oi Rx parte \•^)\^^\^,\ and E,v parte 
 lloniihton ;|| and the Lord Chancellor made an 
 order, referrin«j: it to the commissioners to in- 
 <piire, in w hose onler and disposition the ships 
 in question were at the date and sninj^ forth of 
 the^commission. Tiie commissioners certified, 
 that, in their jndjument, all the ships were, at 
 the date and suing forth of the commission, in 
 the order and disposition of the two Good- 
 <-hilds : and an order was made confirminjL:^ the 
 certificate, and declarin*:; all the shi[)s in cpies- 
 tion to l)e part of their joint estate. 
 
 It is to be rei^retted, that we have not a more 
 full report of what passed upon the hearing;' of 
 tiiis petition, and particularly of what fell from 
 the Lord Chancellor upon tliat occasion; lor it 
 is impossible to ini.i^ine that his Lordship could 
 have pronounced the order ai)ove mentioned ; 
 
 • Solw . N. 1». YWl. and o Maiile cV S«l\v. \ 1 Fli. 1 10. 
 
 I 10 \ L>. G I. II 17 Vci. I'iV. iiml 1 Uosv, 177.
 
 fJO Dhtinclion hchi'ccu Titles ariimg [chap. iv. 
 
 apju'iirin;;, as it docs, to hv in direct op[)Osition 
 (o tin* principles laid down, and acted upon, 
 in E.V parte Yallop,* and Ea' parte Iloui;hton,-|" 
 and whicii were cited in 0})position to the prayer 
 of the i)etition, m ithout animadverting upon the 
 case. Some ji:round of distinction, it is pre- 
 sumed, must either have been noticed by his 
 Lordship ; which, from the short statement of 
 the case I that has been pven us, we are unable 
 to discover ; or he must June considered, that 
 the cases of Robinson v. M'Donnell,§ and Mair 
 V. Glennie,[| which had lately occurred at law, 
 and which appear to have been cited on the be- 
 half of the petitioner, deciding-, as we have seen, 
 that the statute of 21 Jac. 1. c. 19. extends to 
 ships, notwithstanding" the effect of the registry 
 acts, had over-ruled the authority of the pre- 
 vious cases in equity. If, indeed, we are right 
 in the latter conclusion, — if we are to look upon 
 the principle, upon whicli Ea' parte Yallop and 
 Ex parte Houghton had been decided, as having 
 
 • 15 Ves.OO. t 17 Yes. 251. 
 
 I From a note at the loot of the report, wo k'tirn, that thu 
 I»'iiri»c(l editors were not j)r<;sont wlioii the case was before the 
 Court: they inform iis, however, lliat il liad been compared 
 with ihc entry in the book of th*- Secreliiry of Bankrupts. 
 
 § Selw. \. V. 111-2. and 2 Hurn. «.V AM. li>G. 
 
 II 1 .Maide \ .""it l\\ . 1 l(».
 
 ciiAi\ \\ .] J'roin the Ads oj' Partus, S^c. fJl 
 
 Imi'ii abandoned as no longer tenaljle, \v«; Ir.ivc 
 tlirn tin* coiicnrrcnt testimony, wa may say, 
 both of" our coiirts of law and (Mjiiity, to tliti 
 doctrine, tiiat a ^larty may have an interest in 
 a sliip h^i^ally coi^nizable, notwithstandini;- his 
 name may not have l)een ent<Ted upon tiie re- 
 p^ister, as pointed out and directed by the acts 
 in question. 
 
 The distinc^tion, however, of titles arising 
 from the acts of the parties themselves, or merely 
 from the operation of law, and wliich has l>een 
 fully admitted, may perhaps be relied upon ; 
 and it may be insisted, that in all the cases we 
 have been examining:, the question having been, 
 whether the title of the assignees of a banknipt 
 could be sustained, or ))revail against the par- 
 ties whose name aj>j)eared upon the register, 
 such titles must have had their effect solely from 
 the operation of law, and not from any transac- 
 tion that had taken place between the parties ; 
 and therefore, that these cases cannot ])e consi- 
 dered as an autliority to shew that any title or 
 interest may be legally or ecpiitably recognized 
 in a party, whose name may not have been pro- 
 perly inserted in the register, and whose claim 
 rests on the virtue of his contract only. From 
 what, indeed, aj)pears to have fallen from the 
 learned Judges, in giving their judgment.s in
 
 C2 DisliiictiiiH Iniiicc/i Titles aris'nifr |( hap. n. 
 
 tlu'sc caNcs, it is o\ idt-iit tliat {\\c\ lr.i\«> consi- 
 (iiTt'd tin' titlr of tlir assiniiccs ofa haukidpt as 
 oiu' aiisinu' lV(Ui\ u hat has hccii termed the (i|)e- 
 ndioii of law ; and tliat for this reason it\>as, 
 that they h>oked upon the rei;nlations of the 
 rrnistrv acts as not necessarily to l)c enforced 
 for the manifestation of such title, nn<hM* ("ir- 
 cnnistanci^s, \vhen insistini;' upon the n«'cessity 
 of attending; to these rei;nhitions wouhl operate 
 Ui^ainst the i)rincij)les of the statute of. lames. 
 There seems, ho\ve\( r, to l)e a considerable 
 fallacy in this mode of considering the (juestion. 
 The assi;::nees of a bankrupt certainly derive 
 their title tlirou<;h tlie mediiun of certain acts of 
 Parliament, and not from any transaction tiiat 
 has tak(>n j)lace between themselves and the 
 bankruj)t; and in this sense their title must be 
 said to derive its origin from the operation of 
 the law.* But, in the present case, the real 
 
 * Tins sofins to l)e vt^ry fur, h(»v«v«r, from tlu> incaniiin; 
 which this cxpr«'ssion is «;<'iu'riilly understood to convoy. AVore 
 an estate to be scttU'd upon a man hy an act of l*arliament, we 
 shoidd scarcely say, that his title arose hy the operation of 
 law ; l)ut this mode of expression seems to have Ix'en a(h>pted 
 as descriptive of tliat interest, which a party may have thrown 
 ui»on liim, or he investetl with, through the h^al «'H'ect or 
 ci»nse(pi(nces, not of the aits ot others, at least not alto^'lher 
 so, hut of (;ir<unistan(< s th:it have t;ik«n |»iace hy the :ict of 
 (iod. Thus, flu- \\\\\ its( it. Ilium till- (Iculli of ;iii iiileslate.
 
 (;H\i'. IV.] l'ro)n the Acts <>f' Parties^ S\C. (',:i 
 
 fjiirstioii is, not in wiiat nuinnrr (Ik- as.si;;iMrs 
 lia>e derived their title, l)ut wlietlier or know 
 they liaveany title at all. To assert that their 
 tith' arises hy operation of law, j)resumeH the 
 fact, that snch title is vested in them ; hut 
 nnless the hankrnpt himself was entitled to 
 some co<;nizal)le ri^ht or interest in the suhjeet 
 at the period of his commission, or act of hank- 
 rnptey, on which it may he founded, it is clear 
 no title can be derived to his assij^nees. in the 
 supj)Osed case of a ])arty ha\inp: entered into 
 a contract for the purchase of a ship, hut with- 
 out having procured his name to have been duly 
 entered upon the register, it is clear he can have 
 
 casts his real estates upon another, who is desiguate<l, by the 
 known maxims of that law, as his ropicsi-ntativf and successor, 
 and who has thereby acquired the appelhition of his heir at laic ; 
 and, under certain modifications, tlie same hiw bestows his 
 personalty amongst l)is next of kin. And, in hke manner, 
 executors and leiratees, thougli they claim under an inchoate 
 act of their testator, yet are nevertheless considereti as dcriv- 
 h»g their title under the operation of the law ; which, upon 
 the death of the party, vests such title in those who are so 
 named and pointed out by his will. But the title of the as- 
 signees of a bankrupt seems no more to depend upon what is 
 termed the operation of law, or the act of God, that any other 
 title whatsoever. Wholly independent of these, no title, in- 
 deed, can arise, or have any existence. IJut considerable 
 confusion seems to have arisen from the indiscriminate use of 
 these expressions.
 
 (ii Distincthm hct'u'coi'l itlca ari.s'ing [chap. vi. 
 
 no tillr at line ; and if, h\ reason of the ro<;istrv 
 arts, ln' is (Mjually (l(^i)ri\('(l of rv<M'v eijnitahle 
 <'laini, title, or interest, Mliicli, nnder similar 
 cireunislauees, lie would lui\e in any other pro- 
 |)erty ; then is there no title or intt-rest, which, 
 hy Nirtne of his l)ankrnj)tcy, can pass to his 
 assii:;ne(^s. Theactnal possession of, and po^vor 
 of disposition oM'r, personal j)roperty, has al- 
 •\vays been considered as the best evidence of 
 proprietorshij) ; and the act of James 1. has 
 done little more, in this respect, than rendered 
 this evidence conclnsive in cases of bankrnptcy, 
 by shnttini;- ont all other evidence for the i)ur- 
 pose of shewing; the true ownership to be in 
 another. Although the real property of goods 
 that have been left in the possession, order, and 
 disposition of the bankrupt may, at the time of 
 Ins bankruptcy, in fact be in another, yet, pr'nui't 
 J'acie the ownership is in the bankru|)t himself; 
 and all other evidence of title beinii^ excluded, 
 except in certain cases, where the projjcrty liad 
 been so left with the bankrupt ij(jf/a fide, and 
 \vithont any fraudulent intent, and which the 
 Courts have therefore thoniiht not to have come 
 within the object of the statute, such ri.niit or 
 title must have become vested in the assio;nces. 
 But if it is true, tliat, by the operation of the 
 rej^istry acts, no j)roperty in a shij), or any 
 e(piitable inlci'e^t or elaini therein, van be vested
 
 CH VI'. I V.J f'vovi the Acts (J Parties, S^;c. 0.> 
 
 in a pjjrty wliosc ikmik* may not Jipponr upon tin; 
 register, tluMi tluMt^ seems to 1)0 no interest that 
 can pass to his a.ssi};nees in the event of his he- 
 coming l)ankrupt. The ground upon which the 
 statute of James proceeds seems to be this : The 
 property which is openly in the possession, or- 
 der, and disposition of a party, althoujo^h it may 
 have secretly been made over, and, accord inijj 
 to the forms of law, have become vested in an- 
 other, must be considered as virtually belonajing 
 to the party, who has in himself all the indicia, 
 or outwards marks, of ownership ; and if such 
 party shall afterwards become bankrupt, tiie 
 legislature will look upon the transaction as a 
 badge of fraud intended to deceive his creditors. 
 The statute, therefore, acts upon the presumed 
 equitable interest of the bankrupt ; and laying 
 hold of that for the benefit of the creditors, 
 clothes the assignees with the legal estate. 
 There must, however, be some equitable interest 
 in the bankrupt, as it were, to put the statute in 
 operation. Many cases, indeed, as already no- 
 ticed, have been decided as not coming within 
 the intent and meaning of this statute, because 
 the Court were of opinion, that although the 
 bankrupt had been in the possession of the pro- 
 perty in question, and had had the appareiit dis- 
 position of it, yet there was satisfactory^ evidence 
 before them to shew that he had no interest hi'
 
 CtO Kvl<IfH(t' of Interest [cmm'. v. 
 
 tilt' sani<\ and tlial tlir real prvptrtii \\\\s in ano- 
 tluT ; tlieit'hy tlrtt'iininin^, tiiat>\iH'n tliore is 
 no »'«juital>lc inttnst in \\\v hankinpt, tlu* statiile 
 has no Ibrce or operation. 
 
 CHAP. V. 
 
 Of the Evidence ajjonled hi/ the Register of the Interest 
 which Parties nuti/ have in a Ship. 
 
 It has frequently been a subject of doubt how 
 far, and under ^vhat circunistaners, the register 
 of a ship is to l)e considered as aftordin^ evi- 
 dence of tlie title being in those whose names 
 appear on the face of it. 
 
 It has been said, by the present Lord Chan- 
 cellor, tliat the two acts of Parliament enforcing- 
 the registry of ships, were drawn upon this 
 policy ; that it is for the pidjlic interest to se- 
 cure evidence of the title to a ship, from her ori- 
 gin to the moment in which you look back to 
 her history ; — how far, throui;hout lirr exist- 
 ence, she has been British-built, and British- 
 owned ; and that the legislature would not be 
 content with any other evidence than the regis- 
 try. In all cases, therefore, in Mhich a ques-
 
 cHAi'. v.] (iff orik'd hy (lie Register. (>7 
 
 tion mi^ht arise as to tlie, title to a ship, or as 
 to the interest wliieh difl'erent parties might 
 have ill the vesst;!, a priori we should have been 
 led to imaf^ine, that the register must be resorted 
 to for the purpose of determining it ; and that 
 no evidence could, under any circumstances, ])e 
 admitted to shew any title or interest in a party, 
 whose name was not properly inserted in tlie 
 indorsement of the certificate ; and the earliest 
 cases that have occurred upon this head would 
 seem to confirm this notion. We have seen, 
 that previously to the passing of the last of these 
 acts of Parliament, Lord Thurlow thought, tliat 
 even in a court of equity, he could not take no- 
 tice of any interest distinct from that appearing 
 upon the register ;* and in Camden v. Ander- 
 son, f the Court of King's Bench were of opinion 
 that four partners of a ship, who had agreed 
 that two of them only should be the visible 
 ow^ners, as apparent upon the bill of sale and 
 registry, were not capable of maintaining an 
 action upon a policy of insurance ; although, as 
 has been remarked by Lord Eldon, in an action 
 of this nature a court of law takes notice of the 
 doctrine of trusts, holding that the master has, in 
 respect of the legal interest, an insurable interest, 
 
 * Hibbert v. Rolleston, 3 Br. C. C. supra, 8. 
 t ;j Terra Rep. 709. supra, 10. 
 
 F 2
 
 (>H EviJcyicc i>f Interest [chap, v 
 
 as the cestui (jiic trust lias in rrsjx'ct of the oqui- 
 tahle interest.* A short exiiiniiuition, h(>\ve\er, 
 of a few cases that have arisen, in whieli tliis 
 point has called for tlie decision of the Courts 
 >vill shew us, not only that, under sonic circum- 
 stances, other evidence may be resorted to for 
 the manifestation, if not of the title of a ship, yet 
 of the interest or ownership which the party 
 may have in the vessel ; but that, under others, 
 the rep;ister cannot be e\en received as prima 
 facie evidence of the title, or rii;ht of owner- 
 ship. 
 
 In an action t on a policy of insurance, parol 
 evidence was relied upon as sudicient for the 
 purpose of pro\in*^ that the property of the ship 
 was in the plaintift's. But it havinj^ been proved, 
 on the behalf of the defendants, that the plain- 
 tiffs, in fact, claimed their title throu«rh one 
 Brookes, it was objected, that no interest ha<l 
 been shewn in the parties int<M*ested in the in- 
 surance, inasmuch as the sale from Brookes 
 must, according to the rej^istry acts, have been 
 in writing, and therefore that the bill of sale 
 ought to have been produced. Upon a motion, 
 however, to set asidr the M'rdict which the 
 
 * Et parte Y9\{oY>, 15Ves. Go. 
 
 t llobfrtson I. I'roiich, 4 Kast, 130.
 
 f n A r . \ . I fiffhnk'd hi/ t he R egister. Vti) 
 
 ))l;iinti^ had obtained, tin; Court wvvc of opinion 
 that the ownersliip ha<l l»een suflioiently esta- 
 blished. " It had IxM'n prov<'d," Lord Ellenho- 
 roujj^h reniarkc^l, *• by the captain, in the ordi- 
 ** nary way, that the owners, ])y whom, as sueh, 
 *' lie had be< n aj)|)ointed and employcnl, were 
 '* the persons in whom the ownership was, by 
 ** the dechiration, averred to be ; and although 
 *' it appeared that the ownership was derived 
 ** to those j>ersons under a l>ill of sale, it did 
 " n^>t, on that aeeonnt, become necessary for 
 •' the plaintifls to j)roduce that bill of sale, or 
 *' the ship's register, or to give any further proof 
 " of such their pro[)erty ; the mere fact of their 
 '* possession as owners, being sufficient prima 
 *\ facie evidence of ownership, without the aid 
 " of any documentary proof or title deeds on the 
 *' subject ; until such further evidence sliould 
 ** be rendered necessary in support of the prima 
 ^^ J'acic case of ownership which they made, in 
 *' consequence of the adduction of some contrary 
 " proof on the otlier side.' 
 
 This latter case, indeed, is perfectly to be 
 reconciled witli that of Camden r. Anderson ; 
 for there the register was produced by the de- 
 fendants, shewing that the ship had been regis- 
 tered in the names of two of the partners only, 
 for the purpose of rrbuttinu; \\w prima Jacie case
 
 70 EvidoiCL of luta'i'st [chap. v. 
 
 Mhicli Imd been made hy i\\v plaint iH's, by prov- 
 inu; tliat the sliip ;had been paid for ont of the 
 partnersliip fnnds ; and in Ex parte Yallop, be- 
 fore referred to,* LordEldon deehire.s his agree- 
 ment \vith Lord Ellenborou<>h in Robertson v. 
 French, that if u party, contracting:^ for the pur- 
 chase of a ship, has taken possession, and ef- 
 fected insurances, and afterwards brings an 
 action upon the policy, averring that the inte- 
 rest of the ship is in liim, it is sufficient prima 
 facie to shew that he dealt as owner ; yet, his 
 Lordship adds, if it appeared, in the course of 
 the examination of witnesses, that he was enti- 
 tled only under an equitable contract, under 
 those circumstances a court of law would say, 
 the averment was not made out l)y the evi- 
 dence-t 
 
 From these cases we learn, that tlie owner- 
 ship of a vessel can be sufficiently esta- 
 blished without having resort to the register, 
 although it is open to the party disputing the 
 title to rel)ut the evidence that may have been 
 adduced in support of it, by producing the 
 documentary proofs which the bill of sale and 
 register afford. On the other hand, where tiie 
 object has been to render a party liai)h' as owner 
 
 ' 1 "> Vrs. {]{). \ 10 \ i>. G7.
 
 rnAi». v.] ajj'ordcd hji the RcgUta'. 71 
 
 of a ship, the proof of the due execution of the 
 bill of sale, and tiie usual entry in the hooks of 
 the CustoFH-house, have not lieen considered as 
 pr'nnd Jacic v\h\viu:v a«;ainst him. It certainly 
 had been the practice to admit tlie ship's regis- 
 ter in proof of the ownership; and in Stokes v. 
 Carne,* Lord Ellenborough, upon an objection 
 to the (ivicb'iice ])ein,g taken, said, bethought it 
 sufKcient to throw the burden upon the parties 
 of proving the contrary. This doctrine, how- 
 ever, seems to have been completely over- 
 nded. 
 
 Thus, in an action brouglit against the de- 
 fendants as owners of tlie Prince of Wales, 
 upon account of stores supplied by the plaintift' 
 for the use of the vessel, in order to prove the 
 ownership, and the lia])ility of the defendants 
 as sucii, the plaintift' produced the registry 
 l>ook, ])y wliicii it appeared, that the whole pro- 
 perty in the vessel had been previously trans- 
 ferred to the defendants. But the evidence 
 having been rejected by the learned Judge (Mr. 
 Chief Justice Mansfield), a motion for a new 
 trial was made, when it was contended on the 
 part of the plaintiff, that wherever an act of 
 l*arliament directs any transaction to be regis- 
 
 ' -2 Ciml.. :{:{!».
 
 i2 Evidi'fice of Interest [chap. v. 
 
 ttTetl, the entry of tliat transiictitui, made hy 
 the proper ottieer, is e^ idence; and that, iilthongh 
 this niijiht not be conclusive evidence that the 
 defendants were owners of the vessel, yet, that 
 it was at least prima facie evidence of sucli own- 
 ership, and must be rebutted. The Court, how- 
 ever, were of opinion that the evidence Iiad been 
 rightly rejected, and the motion was refused.* The 
 principle upon which this decision seems to rest is, 
 that there was no evidence before the Court to shew 
 that the parties sought to be charged as owners 
 had been privy to the entry on the register. In 
 giving his judgment, the Chief Justice remarked, 
 that no proof had been given of any bill of sale 
 to the defendants, or of any act done by them, 
 or of any connection shewn between them and 
 the officer of the Custom-house ; and that he 
 never knew an instance w here the act of any one 
 man could charge another unconnected Mith 
 him. And Mr. Justice Lawrence added, " Un- 
 *' less you shew all things to be done by the 
 " authority of the person who is to be charged, 
 " the register cannot be made evidence, even 
 " priind faciei 
 
 This case was shortly afterwards confirmed, 
 by one tliat cauK; before tlie Court of King's 
 
 ' Jrastr .. Jli'pkiU'-, '1 Tiiuiit. o.
 
 (MAI*, v.] (ijhrdcd bij I he Register. 73 
 
 Ik'ucli.* Tlie i»laiiitifrs Iraviiig siipplic'd <'i <|iuin- 
 tity of «?unpow<ler for the use oi the Walpole 
 Eiist-Iiuliaiiiun, }>y order of the ship's husl)and, 
 ])rou«:;ht an action for jjjoods sold and delivered 
 ai::ainst the defendants, as one of the owners of 
 tiie siiip ; and in order to prove the ownership 
 of the di'fendant, the plaintiffs produced and 
 proved the execution of two bills of sale to him 
 of certain shares of the ship, and also called an 
 officer from the registrar's office, who produced 
 ami proved two registers of the ship Walpole, 
 \\hich, on the face of them, appeared to have 
 been made upon the oaths of the ship's hus- 
 band, and two other part-owners, swearing that 
 they and the otlier parties there named, includ- 
 ing the defendant, were the owners of the ship ;t 
 and they furtiier produced the original certificate 
 of registry obtained thereupon. And these were 
 insisted on, from their authenticity as public 
 documents required for j)ublic purposes, and 
 obtained under the sanction of an oath, as at 
 least primdfacie evidence to prove the defendant 
 
 * Tinkler and another v. Walpole, 14 East, 22G. 
 
 + This oafh is not reqnired by the act to be taken by all the 
 owners of the vessel, in case of there being more than one, 
 and some of them being resident more than twenty miles from 
 the port or place wtjore the register is required to be made. il*ee 
 U'O Geo. y. c. <J0. s. lU.
 
 71 Evidence f>/' Intercast [chap, v, 
 
 a [);irt-()\viier. lint, upon tlw autliority of the 
 late case of Fraser v. Hopkins, tlie plaintifl'a 
 were non-Kiiited. A rule, however, havin|2j been 
 ohtainiHl for a new trial, it was contended on 
 the part of the plaintifi's, that tlielepfislature hav- 
 inij, on Lii'ounds of general policy, directed pub- 
 lic reiiisters to be made to prove the ownership 
 of British navigating; vessels to be in Britisii sub- 
 jects ; and that, for this purpose, certains acts 
 should be done upon oath, in every case of a 
 transfer of property in every such ship, in order 
 to give notice to the public who tlie purchasers 
 of ships are, had rendered such register a pub- 
 lic document, authenticated upon oatli ; and 
 tliat it was, on that g;round, as much entitled to 
 credence, in the first instance at least, as any 
 other public document whatsoever, directed to 
 b(; enrolled or renistered for pul>lic purposes.* 
 And it was furtlier insisted, that it liad always 
 been the practice, since such registers had been 
 estal)lisln'd, to receive them as primajacic evi- 
 dence of the ownerslup of tlie vessel. The rule, 
 however, tliat had hvvn granted for a new trial, 
 
 * Thus, by thr statiilf; ot" iiiroliiH-iits (10 Ann. o. lU.) c(H)i«'S 
 of th«! iiirolincnt of indentures of hiirgaiii an«l sale, exaniiiietl 
 with the iiifoliueiit, and si<>ii((l by th<' propf r officer, and proved 
 
 Mpiiii oiHli, li.i\ ( till -iimi rnitr itrid efl"( lI a^ tlie original iii- 
 
 '|i lilllM'..
 
 ciiAiv v.] tiffurikd by the Rcghtcr. 75 
 
 %vas dis(li;irg('<l. Lord Elhnborough adinitKd, 
 that the j)racti(!e had long prevailed of receiving 
 ships' registers as evidence, without more, of the 
 property being in the persons therein named ; 
 Imt, upon considering the admissibility of such 
 evidence against a defendant, he thought, in a 
 case wliere a party had done no act to adopt the 
 register, as having been made by his authority, 
 the Court could not give effect to it, >vithout 
 vsaying that a person might have a burthensome 
 act tlirown upon him, without his o\vn assent or 
 privity. 
 
 And in a subsequent case,* before Lord Chief 
 Justice Ellenborough at Nisi Prius, M'here an 
 action was brought against a party as owner of 
 tlie ship Enter[)rize, for the purpose of proving 
 the ownership in the defendant, the register was 
 produced, in which his name appeared as sole 
 proprietor of the ship. And it was attempted 
 to distinguish the case from that of Tinkler v. 
 Walpole, from the circumstance of the register 
 purporting the grant to have been made upon 
 the oath of the defendant himself. His Lord- 
 ship, however, was of opinion, that the defen- 
 dant could not be charged through the medium 
 
 Smith r. riigf, 3 Camp. 10(.».
 
 70 Kv'nUncc (>J Interest [ruAl'. v. 
 
 of tlie n'fjister, Avithout proof that he took the 
 oath, or adopted the character of owner. 
 
 Wo have seen from these cases, that the re- 
 pster, althout^h formerly admitted as evidence 
 of ownership, is not now considered even as 
 prima facie evidence, for tlie purj)ose of proving 
 a party as owner, unless it can he also ])roved, 
 tliat, l)y some act of his own, he has himself as- 
 sented to, or adopted, the register. We have 
 now to consider, whether the register can be 
 a<lmitted as evidence in favour of the party pro- 
 ducing it. 
 
 According to the report of the above-cited 
 case of Tinkler v. Walpole, Mr. Justice Bayley 
 n 'marked, tliat the case then before the Court 
 Mas \v\'\ difl'erent from the case of a person 
 j>ublicly asserting that he is owner, by tlie act 
 of registering a vessel in his own name: that, lie 
 considered, might he prima Jacic evidence ^or 
 him that he is owner; because he thereby pub- 
 li<ly cliallenges all persons that he is so.* 
 
 In a case, however, that shortly afterwards 
 came before l^ord Kllenborougli at Aisi Prius, 
 tliis <ioetriiie does not app<'ar to liave been ac- 
 
 ' 1 1 I'll -I, ■_»:>;».
 
 f'HAP. v.] ajjordcd In/ the Reir'tstcr. 77 
 
 kiio>\le(l{i:<'(l. All nrtion had been broiii;!it inr 
 storrs snpplird hy tli(? plaintifT to tln' >Iii]) 
 Swullow, of %\lii(h tiie dcfVtiHlant liad acknou- 
 I<'dj;ed liinist*lf to have been an o>>ner; ])nt a 
 j>lea of abatement having been put in, it was 
 proposed, on the behalf of the defendant, to 
 prove by the ship's rej^ister, that tlie other j)ar- 
 ties named in the j)lea were co-owners of the 
 ship at the time wlien tlie stores were s\ipplied. 
 And l^inkbMT. Walpole having l)een relied upon 
 for the purpose of rejectinj^: this evidence, it was 
 contended, thut that case only determined that 
 the register was not evidence to charge a person 
 whose name appeared upon it, and mIio had 
 not signed it ; but that it was, nevertheless, good 
 evidence^br a person who had adopted it. His 
 Lordship, however, was of opinion, that the 
 register could not be evidence for a man : tliat 
 if he had signed it, it was evidence agauist him ; 
 but that it could amount to no more than a 
 declaration that he was owner, which a man 
 could not convert into evidence of his own 
 title. A verdict, therefore, was given for the 
 plaintiff.* 
 
 It has also been ruled by Lord Ellcnboroiigh, 
 that the production of a Britisii register of a 
 
 • Hower V. Voung. 3 Camp. 240.
 
 70 EvUkvcc of luiirvst [chap. v. 
 
 ship, is no evidence, of itself, to prove that sneh 
 slii[) is liritisli-built ; l)ut that, for tliis purpose, 
 some evidence must first he given, that the [)arty 
 in \vhose name the rei;istry had been made ^vas 
 jH'iNV to the transaction, and tlien, through some 
 otlier medium, tliat lie was owner of the ship.* 
 
 In this case, the evidence of tlie refi^istry was 
 not souj:!;ht, either for the purpose of establish- 
 ing tiie title of the i)arty as plaintifi' in the suit, 
 or with the view of charging him as defendant ; 
 but the point arose in an action of assumpsit 
 against the freighter of the ship, the defence to 
 the action being, that the ship, instead of hav- 
 inir been a Swedish vessel, as she had been 
 denominated in the memorandum for charter, 
 was, in fact, British built. The question at 
 issue, however, between the parties to the suit, 
 was the same as in the case of Smith v.Fuge, which 
 had been decided by his Lordshij) only a few 
 days previously. Indeed, if the production of 
 the register supported by proof that the i)arty, 
 w hose name there appears as owner of the ves- 
 sel, himself took the oath re(]uired by the sta- 
 tute, or that he adopted the character of owner, 
 is sufli<ient to chargt; iiim with the liabilities at- 
 tached to such ownership ; it seems diilicult to 
 
 • Hcus-.*' I . Mvyt'is, :i C'ainp. 475.
 
 f;M\i». v.] iilJ'onU'd hij the Rci^istcr. 79 
 
 «lisc<)\('r \\\i\ siK'li production of the rej'ister, 
 wliirli could only have been made on the oath of 
 tlie j>erson stating- himself to he the owner, to;j^e- 
 ther with proof of the same havinj^ been duly 
 made with his privity, should not l)e considered 
 as surticient evidence of the mere fact of owner- 
 ship between indifferent parties, without goinj? 
 on to pr(>ve, through some other medium, that he 
 was owner of the ship.* 
 
 • Alth()U!>li tile accuracy of tlui learned Editor of these 
 Reports is well established, the Author cannot avoid suggest- 
 ing, tliat, instead of tlie words " and then," stated to have 
 fallen from Lord Ellenborough, his Lordship may kave uxed 
 the word " or," which will render this case completely consist- 
 ent with that of Smith i . Fuge.
 
 80 
 
 CHAP. VI. 
 
 Of the VuViditi/ of a Mortgage of a Ship, os affected hy the 
 \Alh sect, of 34 Geo. 3. c. G8, or by the Policy of the 
 Registry Acts. 
 
 Having examined the various cases that have 
 come before the Courts, ])oth at law and in 
 equity, by which tiie question, as to the vali- 
 dity of the mortgaj»e of a ship, may be aft'ected; 
 and having seen that, from tlie result of the 
 whole of these cases, it must be considered 
 doubtful (the question itself ne\er iiavin^,yet 
 been decided,) whether or no sucli a mortgage 
 could be sustained ; it may be useful to look a 
 little more particularly into such parts of the 
 registry acts, as are deemed to have deprived 
 the owners of property of this nature of a power, 
 wliich is inciilent to all other property whatso- 
 ever. 
 
 The principal clause that seems to have been 
 relied upon, as requiring this construction, is 
 the 14th section of the stat. 34 (jleo. 3. cap. 08. 
 TIh' former act, viz. ^(Mieo. 3. cap. (JO, liad re- 
 quired, tljat, upon any transfer of a ship, in 
 whole or in |)art, the ccrtifi<\ite of the registry
 
 CM\i'. vi.j Of tlw J'aliditi/, S^c. 81 
 
 slioiiM In- fnil\ Jiiid :irrurat«'ly recited in the 
 hill of sale, and the section of the latter statnte, 
 now nnder our consideration, havinj^ taken no- 
 ti<'e of this, an<l recitinj:; that doubts had arisen 
 whetlu'r, hy (he said provision, every transfer 
 of property, in any ship or vessel, was required 
 to l)e made hy some hill, or other instrument in 
 writinjr; and whether contracts or aj^reements 
 for tiie transfer of such property might not he 
 mad«* without any instrument in writing; enacts, 
 that no transfer, contract or agreement for trans- 
 fer, of property in any ship or vessel, made, or 
 intended to he made, after the 1st day of Janu- 
 ary 1795, shall be valid or effectual, for any 
 purpose whatsoever, either in law or in 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 
 w riting, containing such recital as prescribed by 
 the said therein recited act. Now, the effect 
 of this clause, it is said, is to shut out and ex- 
 clude all equitable interests w hatever, inasmuch 
 as it is impossible to aver the existence of any 
 interest, which does not appear upon the certi- 
 ficate of registry ; that, by that alone the legal 
 estate to the ship is to be ascertained, and no 
 right or claim can be established against it. For 
 the better understanding, however, of this sec- 
 tion of the statute, we should consider the cir- 
 
 G
 
 a2 Oj' the I'tiluHlii [chap. VI 
 
 cumstancos or occasion which led to its enact- 
 ment ; and this >vc are enabled to do, as well 
 from tiie recital l>y which it is introduced, as hy 
 a relerence to the doubts therein alluded to. 
 This act, as has been before reinarkt?d, was 
 passed shortly after tiie decision of Lord Thur- 
 low in Hibbert i". Kolleston ;* and as it was 
 evident that his Lordship's judu;nient could only 
 be supported (if at all) upon the spirit, or what 
 has been termed the policy, of the statute of the 
 26 Greo. 3. cap. 00, it was thought advisable by 
 the legislature to introduce into a new act, tiien 
 in contemplation, for the further encouragement 
 of British mariners, a clause for the purpose of 
 removing; any doubts as to the validity of l^ord 
 Thurlow's judgment; and of declaring, in ex- 
 press terms, that to be the law of the land, which 
 then reste<l alone upon the authority of the case 
 oi Hibbert v. Rolleston.t 
 
 Let us first, therefore, again advert to this 
 case, and see w hat the d«*cision of l^ord Thur- 
 
 * 3. B. C.C.571. 
 
 f The judgment in Camden ;. .Xndcrson, .'> T. K. 700, ap- 
 pears, as before remarked, (pai^e 11, supra) to have been 
 given a few days after the passiiit; (jf this act ; i)ut the art itst-h' 
 is not referred to, either in th*- ar<;uniput, or in the judgment ol 
 ikt Court.
 
 (iivr. VI." of (I Morti>;(t<j;r of a Ship, c^v. H.3 
 
 low rc.iUy u.t.>. A liill ofs.ilc of a shij) liad Ixjen 
 <»xi'<Mih'(l iVom /\. to \\.\ l)ut certain foriii.s, made 
 nect'ssjuy l»y llic sfat. of 'i^) (ioo. 3. cap. (i8, liad 
 not IxMMi (N)nj|)lic<l with ; so that the lej^al estate 
 iii tlie ship (as liad j)n'\iously b(M»n decided in a 
 court otlaw,} couhl not pass, hy such hill of 
 sale, to the pur(has(»r, but remained in A. the 
 vendor. ^Fhis instrnment, therefore, not having 
 any efibct to pass the legal interest, could 
 only Ix' considerj'd as an agreement, or as 
 evidence of the ((tnlract existinj^ between the 
 parties; and the purchaser tiled his bill in the 
 Court of Chancery for a specilic performance of 
 such agreement. The bill, however, as "we have 
 seen, was dismissed by the Lord Chancellor. 
 Now, had the agreement related to land, or to 
 any other specific property, excepting only tliat 
 of the nature we are treating of, the plaintiff's 
 remedy would have been quite of course ; but 
 Lord Thurlow must have been of opinion, that 
 that equity, which was administered by the 
 Court in all other cases, could not be so admi- 
 nistered in the case before him, by reason of the 
 last-mentioned act.* The effect of the decision, 
 
 • It appears, indeed, from the report in Brown, that Xord 
 Thurlow, at the hearing of the case, expressed great doubts 
 V hether the remedy sought by the bill could be given, conais- 
 leiitly with the pro\i.>ious of (he act. And we learn from the 
 
 G 2
 
 84 Of tlw I 'uitditif [(.HAP. M . 
 
 therefore, was, not that a party intciuliiiii^ to 
 convey or make over a ship, by \\ay of iwort- 
 j^};e, and doin^ every tliin^' then ie<piin'd by 
 the act of Parliament, for the eflectually passinjif 
 his legal estate in tlie ship, uas thereby pre- 
 cluded from the common rij;lits of a mort«;aj;or, 
 and prevented from fdinj^ a l>ill in a court of 
 equity for tlie purposo of rcdccmi/ig liis property 
 upon the usual terms; ]»ut that a party to w lioni 
 a ship is intended to be conveyed or assigned, 
 either as an absolute purcliaser, or merely by 
 way of security, cannot rest upon his contract 
 only, but must take care to procure the legal 
 estate ; and if he failed to do so, the Court of 
 Chancery was prevented by the act from atibrd- 
 ing him the remedy given in all other such cases. 
 If we now turn again to the 14th section of the 
 54 Geo. 3. cap. 00, Me shall find, that it ex- 
 pressly refers, as well in the recital as in the 
 enacting part of it, to a case of this nature. 
 Dk)ubts had arisen, it is tliere stated, whether 
 the former act required every transfer of a ship 
 to be made by au instrument in writing, or wlie- 
 tber contmets for a transfer might not be made 
 without any instrument in writing; and then it 
 
 present IjOrd Chancellor, that ^rlien thr (luostioii cjuijf first 
 before Lord Thurlow, his Lordnliip had throat doubt about iiv 
 i\([f>Uer i. (iilUspif, 11 Vt-s. O-iri,
 
 (HAT. vi.J ()J a M()rtg(iy;r of a Ship, S^c. U.'> 
 
 is «»iia<'t<Hl, that no contrart or ajjrcoment shall 
 he valid or crtcctnal, cither in law or equity, 
 iinh'ss tlie sain<; shall he nui(lel»y l>ill of sale, or 
 instrument in writin;^, eontaining; such recital 
 as prescribed hy the former act. It seems to be 
 evident, therefore, not only that the lanj^uage of 
 this clause does not %o furtlier than the decision 
 of Lord Thurlow before referred to, but that it 
 was not the intention of the legislature that it 
 should have any furtlier extension ; that they, 
 l>y whom that law was enacted, had no idea of 
 interfering::, in any manner, with the rights of 
 mortgagors, or of depriving courts of equity of 
 their power of enforcing a redemption against a 
 mortgagee, upon the usual terms, but that all 
 such rights should remain as before the passing 
 of the act. 
 
 It is said, however, that if mortgages of ships 
 are not directly prohibited by any express words 
 of either of those two acts of Parliament, yet 
 that the form of the indorsement on the register 
 re(piired by the latter of them, upon any altera- 
 tion of the property in a ship, is such as to be 
 incompatible with a mortgage ; and a compli- 
 ance with this form being imperative upon the 
 orticers of the Custom-house, that it necessarily 
 follows, tliat no effectual mortgage can now be 
 nii<lr. The \'){\\ section of tliis act certainly
 
 8(> Of the }\iUd'ttii [chat. vi. 
 
 requires, tliat upon any altrration of property 
 in a ship, an imlorsement upon tlir (•« rtificate of 
 registry shall be made, in the manner, and form, 
 therein-after expressed. And the form is after- 
 wards fiiven in tiie words foUowinj^, viz. 
 
 •' Form f>f Indorsement on ehange of pro- 
 '* perty. 
 
 •* Be it rememlxred, Tliat [I or we] [^names, 
 *• rcsidoicc, and occupation, of the persons selling] 
 *' have this day sold and transferred all [my or 
 " our] ri<::ht, share, or interest in and to the 
 *' ship or ^ essel [lunne of the ship or vessel] men- 
 ** tioned in the within eertifirate of rej»istry, 
 '* unto \jiames, residence, and occupation of the 
 *^ purchasers]. Witness [my or our hand or 
 *' hands,] this [(late in xcords atj'ull length.] 
 
 " Sij^ned in the presence of [Two icitnesses-Y 
 
 It is evident that the form liere ui\ en is apj)li- 
 rahle only to the rase of an absolute sale, or at 
 least, that the legislature, in recpiiring this form, 
 had no change of property in contem|)lation, 
 other than a transfer between u ven(l<»r and j)ur- 
 chaser: for although the words " all right, share, 
 *' or interest," may not be too comprehensive, 
 where a mortgage only is intended, Tthese being 
 the wnrds commonly used in all mortgages, ab 
 thou^di the rquitable right of redemption i^ in-
 
 f FiM'. \i.| of a Mor/gdirc (i/'aS/iip, fy\ 87 
 
 ttiulid t(» !)(' reserved to tlu' niortj^^por; thf 
 words '• all rij;li(," &,c. or Avhatever other wordn 
 or form of e\|>r<'ssi(Hi is m;i(le us(; of, only optj' 
 ratinu: upon J lie legal estate ;) y<'t, when we per- 
 (M'i\e that the names, residence, and orrupation 
 of the parties transferring- are denominated 
 *• persons .yt'///;/^'"," and tlie names, residence, and 
 occupation of tin.' parties to whom the transfer is 
 to i)e made, are denominated purchasers, it is 
 plain that th«' form was only intended to be 
 used wiiere one person was selling, and another 
 was pnrciiasing, a ship, or some share or inte- 
 rest tiierein. Tiie cpiestion, therefore, seems to 
 be this : ISeeing that the form prescribed by the 
 act is applicable only to an absobite sale of a 
 ship, and cannot, without some variance, be 
 rendered suital)l(! to a transfer by way of mort- 
 gage, does it follow, as a necessary conse- 
 quence, that the legislature intended, by this 
 indirect method, to prohibit or restrain the right 
 of mortgaging ships ; or did it intend to leave 
 such right unaftected by the act? or, in other 
 words, nnist the form directed to be made use 
 of by the act, be invariably adopted, so that no 
 transfer can takt; place, whatever may be the 
 intention or wishes of the parties making such 
 transfer, except that only which purports to be 
 an entire and abs(dute disj)Osition of the pro- 
 perty ; or ni:ikinu- use of tli<' ueneral purport
 
 88 Of the Vuruliti) [ciiAi'. VI. 
 
 and substance of the form, can, or iiuiy, it be 
 so moulded and altered, as to meet tlie exi- 
 gency of the case ? 
 
 Tliat tlie very words of the form j::iven by the 
 act need not be made use of in all cases, has 
 been decided by the Court of Common Pleas.* 
 A transfer havinj:: been made of one undivided 
 fourth part of a sliip, it was contended, tliat the 
 bill of sale by whicii such transfer had been 
 made was defective, inasmuch as it was not ex- 
 pressed to be a transfer of " all the interest" of 
 the party; but the Court thought tiie indorse- 
 ment, expressing the transfer to have becu of 
 one fourth of tlie ship, Mas sulhcient ; and i^ord 
 Chief Justice Mansfield remarked, that where 
 the act of Parliament contemplates a transfer of 
 the whole ship, it uses the expression " all my 
 *' [or our] right, share, or interest ;" and that it 
 was j)lain, that tlie persons w ho penned the act, 
 omitted to provide for tlie case of a sale of a 
 part ; — that the legislature only meant, that tlie 
 indorsement should shew what was the interest 
 conveyed ; for it would be impossilile literally 
 to follow this act, and to say '* all my iuterest," 
 when the vendor meant to convey a |)nrt only. 
 And Mr. Justice Chaml)re ailded, " It would be 
 
 I ii»I<i\m)«mI i..'Mi11<i, I I. Mint. :IH7.
 
 < iiAi'. VI.] <>) a Mortgage oj a Ship, ^c. Itf) 
 
 ** contrary to the poliry of the law, to prevent 
 *' persons possessed oi" property in sliips from 
 '* alienatinj:: any tliinp;, unless they shonhi ali- 
 ** nate their wliole interest. — That it \vnnl<l l>e a 
 " narrow and rij^orons ronstrnetion in<lee<l, to 
 ** say, tliat the form wliirli is }:^iven in the art 
 ** for the sale of all, must he the only form ap- 
 *' piicable to all eases/' 
 
 It is further to be remarked, that the indorse- 
 ment, recpiired to he made by the statute, is not 
 eonfined to the <'ase of absolute sab'S ; but is 
 extended, also, to that of contracts or agree- 
 ments for sale ; although the form given by the 
 act is, as we have seen, applicable to absolute 
 sales only. Now, this not only shews, that the 
 legislature did not intend to prevent or render 
 invalid mere contracts or agreements relating to 
 ships, but is of itself very strong eviden(!e to 
 shew, that indorsements must be varied accord- 
 ing to the nature of the transaction, and so as to 
 meet the intention of the contracting parties; and 
 it has theri'fore been suggested, l)y the leannd 
 writer on the law relative to nierciiant ships an<l 
 seamen before cited,* that the words caiitracUd 
 toscil ami franxjcr should be used in the indorse- 
 ment, instead of the words " have sold and t rang- 
 
 ' \\ I I. IK.K 7.
 
 VO OJ' Ihf I 'iiiulitif [< • H A I' . VI. 
 
 " /crri</" it" thr case siiould rccjiiirc such an 
 alteration. If, tlicrctbrc, the words of the in- 
 (h)rseineiit are not ahsohitely inflexihle, hut may 
 he altered, where the owner of a ship int<'nds 
 not to part with the wlioh% or \Nith all his share 
 or interest therein, hut with a part of that share 
 and interest only, as \\v ha\e seen by the case 
 in the (Jonnnon l*leas ; and if, in another rase, 
 the act itself has rendered it nec<'ssary that some 
 such alteration should he made in the indorse- 
 ment, as has Ixmii sungested by the learned 
 author lately referred to, what is there, it may 
 he aske<l, wliere a transfer hy way of mortpi^j^e 
 only is intended, that should prtjvent such alter- 
 ation or addition heinn" made in, or annexed to, 
 the indorsement, as the circumstances of the 
 case may nupiire f 
 
 In the case of Thompson v. Smith,* alrea<ly 
 cited, this suhjt^t appears to have \ ery much 
 eni;a<ied the attention of Sir 'rinimas IMumer; 
 and, declaring? it as his opinion, that there is no 
 di(H(!ulty, notwithstandinu: the rei;istry acts, in 
 ert'ectuatim;' a mortnajie of a ship, that learned 
 .Fud«;"e th(M'<! stated in what manner such mort- 
 i::ai;e should he made. \\ itii respect to the form 
 of tin* indorsenu'iit, he says, it ou,i;lit to be the 
 
 I \| 111. ;>!>■"». ~u|ii.i. |);i'.i<' "JH.
 
 VHAT. VI. i (>l a Mori gage of a Ship, S^c. VI 
 
 same miMi that prrscTJIx'd l»y tlie act, l>ut with 
 {\w addition of a (hT<'azan<(', to cxjucss the tr»u; 
 nature of the eoiitraet hrtween tlie parties; and 
 that tliere is nothini!; in tlio act to jn-event sn< li 
 an addition heini; niadr to meet tlie exigency of 
 the case. 
 
 If there is notliin*::, liowever, in eitlier of tliese 
 acts of Parliament, l)y which mort,i::a«^es of ships 
 are expressly proliibited or prevented, yet it is 
 asserted, that tlie spirit and policy of them are 
 snch, as to recjiiire the Court of Chancery to 
 Mithhold that eipiitahle relief to morti^aj^ors of 
 property of this nature, to which, before the 
 passinjjj of these acts, they were entitled in com- 
 mon w ith all other persons, who had conveyed 
 their property to another merely by way of 
 pled«^e. 
 
 The inconvenience that must result from this 
 doctrine has already been taken notice of, and 
 cannot, indeed, but be immediately apparent; 
 and if it should once be fully established, the 
 greatest frauds mi^:ht be practised, in the face 
 of our courts of ecpiity, whose principal juris- 
 diction is to detect, and, as far as they can, 
 prevent, or defeat, all fraudulent transactions, 
 in w hatever new shape they may appear. And 
 X\\^<v, indeed, would be enabled to be eflVrtrd
 
 9-1 Of the ralidi/i/ [chap. vi. 
 
 I»y the v«ry mriins art'onittl hy the lejiishiture. 
 i^liu'h has certainly been said respectin<Tj the 
 ]K>licv of the re<^istry acts in tlie difterent jticljx- 
 nients tliat liaxe ]>een j^iven by the Court upon 
 questions arisinj;- under them. From the judg- 
 ment j;iven by Lord Ehb)n, in the case of Mes- 
 taer V. Gillespie, already cited,* we learn that 
 the j:;round of Lord Thurlow's judgment in Hib- 
 bert V. UoUeston, \vas, the distinnuisliiui;- tiie 
 case before him, from tliose to whi<li it had been 
 compared, (vi/>. the statute of frauds, and a 
 bargain and sale without inrolment ;) the policy 
 of the act of tlie '26 Geo. 3. beinj?, to make the 
 instrument, if defective, as in that case it was, 
 void to all intents and purposes; and his being 
 of opini<m, that the object of that policy could 
 n<>t be attained, if such a thing as an equitable 
 title to a ship could sul)sist ; since parties, it is 
 said, might rest upon tlieir e(piitable, with- 
 out desiring tlie legal, title. Tlie object being, 
 as his Lordship adde<l, that there should be 
 such, in the form and contents of the instru- 
 uMiit, as to manifest all the circumstances neces- 
 sary to secure the knowledge, who were tlie 
 owners, from time to time ; by which tli<' his- 
 tory of the ship, from the moment she \>as 
 built, might be pursued.! 
 
 ' Sii|ir;( jiiiui n. t Ml v|;ic r . . (iill( -pic, 11 \ ( >. •»"i.>.
 
 CHAP, vi.j oj a Mortgage of a Ship, &;c. 9rj 
 
 rioin the fjjreut iiuportaiuu' of tliis cast- of 
 Mestaer v. (iillespie, the Lord ClianceUor di- 
 rected it to be arjijued a^aiii before him, declar- 
 ing his \\\s\\ to re-hear it with the assistance of 
 the Master of the Rolls (then Sir William 
 (irant); and on deliveriiifj^ his judji^nient upon 
 the case, the Master of the Rolls observed, 
 that the rej^istry acts were formed, not for the 
 purpose of ascertaininj:^ the rights of parties 
 aj^ainst each other, or of protectinj^ them from 
 fraud, but with a view to a p^reat purj)Ose of 
 public policy; and that the acts, in all their 
 provisions, compelled them to observe regula- 
 tions, not in any degree requisite for their own 
 private interest, in order to accomplish the ends 
 of the act. It might be said, he further ob- 
 served, that the legislature, having proposed 
 their object, proposed the only means by which 
 that object was to be secured ; judging of the 
 propriety of enforcing that object, and by such 
 means embracing that object; and prescribing 
 those means, whatever inconvenience might re- 
 sult to private individuals. The harshness, 
 therefore, in particular instances, his Honor 
 thought, was not to be taken into consideration; 
 the object being, not to provide for the interest 
 of parties, as against each other, but, at all 
 events, to attain that great objei't of jmblic 
 policy, to which it might be thought right to
 
 .^4 Of the J'aliil'itjj [cHAi». vi. 
 
 sacrifi<M* individual inconvenieact' and justice 
 according to ordiiiarv rules.* 
 
 Ill another case, also, Ljrd lilldon, speakinj; 
 of the policy of tht*s«; acts, expresses jiiniself in 
 the tollowini;- manner : — " Tiiese two acts of 
 " Parliani.Mit \ver<; drawn upon this jjolicy; that 
 *' it is for tlie public interest to secure evidence 
 ** of tlie title to a ship, from her on<(in to the 
 *' moment in which you look hack to her history; 
 " how far, throui^hout herexistenctj, she has lieeii 
 ** British-built and British-owned ; and it is 
 " obvious, that if, where the title arises by act 
 *' of the parties, the doctrine of implied trust in 
 '* this (yourt is to be applied, the whole policy 
 "of these acts may be defeated; as neutrals 
 *' may have interests in a ship partly British- 
 ** owned; and the means of enforcin": the navi- 
 *' Ration laws dc^pend upon knowini>-, from time 
 " to time, who are the owners, and wlitither the 
 " ship is British-owned and British-built. Upon 
 " that, the lej^islature will not be content with 
 " any other evidenc^e than the re'jjistry, and re- 
 " fpjires the jj^reat variety of thinj^s prescribed 
 " by these acts.""]" 
 
 • MestiM-T 'i. (iilhspio. llV«\s. G42. 
 •f Kx parte Vallop, l-» \ v-n. GG.
 
 (Mvi*. VI.] o/ (J jMcr/i^/ri^c 0/ a Shij), S,c. 
 
 <:A 
 
 \\ »; caiiuul hut ()1»« r\ r, |jr)u«n«'r, that the 
 opinions \mvv. recordi'd, <»!' tlirs<* (liH"rr<'nt ItMirnrd 
 Judges, have Ix-rn ^i\rii in r«'rer<*ii('e to tli<' doe- 
 trine of trusts arising; hy iinplieation of law, or 
 ratlier of equity, un(h'r eontraets tliat liave heen 
 enl«'re(l into, hut from sonu^ accident, fraud, or 
 otlier <irciunstance, have not heen cairied into 
 execution accordiui; to the intention of tlie par- 
 ties ; and that they have no direct apjdication 
 to tliat species of trust, Avliicli may he said to 
 exist het\ve<'n a mcrtLianor and morti::aj::ep. If, 
 in(h'e<I, tiie forms prescrihed l)y tlie acts are not 
 complied with, the ohject of the party contract- 
 ing for the transfer, whether it he for a mort- 
 Pfajj;e or an ahsolute estate, must equally fail ; 
 and althoujih, in the case of a mortgaj^e, tlie 
 money may have heen advanced hy the intended 
 mortjLi^aj^ee, such payment w ill not constitute the 
 party receiving it, as it will in all other cases, 
 a trustee for such mortgagee. But the trust 
 which we are now considering, as existing he- 
 tween a mortgagor and mortgagee, is of a very 
 different nature; it is not that trust which is 
 vested in a mortgagor w ho has failed to fidfil his 
 contract with the mortgagee, which is exactly 
 analogous to the trust always existing in similar 
 cases hetween vendors and purchasers, and 
 which, therefore, must he governed hy the same 
 •rules; Imt it is a trust which the Court of
 
 (Hi Of the I 'iiliditii [chap, y I . 
 
 Cluinrery has always rerounized as \ested in a 
 viortgdiTcc, viz. to re-roiivcy tlu' sul)je<*t-inatter 
 of tlie s«'tiirity, upon his htMnj;' n'paid his prin- 
 cipal niont'y atlvanred, toj;ether witli the inte- 
 rest, an<l all sueh rosts as he may have been put 
 unto by reason of sueh advancement. 
 
 It seems, however, that the nature of these 
 trusts, which in rtmlity are very distinct, iiave, 
 by some means, been stran}i^ely confoimded to- 
 gether. An opinion seems to have been enter- 
 tained, that, because the policy of the re^^istry 
 acts, if not the letter of them, has abolished all 
 trusts, as administered in a court of equity, 
 upon contracts not carried into execution ac- 
 cordingj to the real intention of the parties, that 
 therefore, and tojj^ether with these, they have 
 necessarily put an end, with the exce[)tion only 
 of such trusts as arise by mere operation of law, 
 to all trusts whatsoever ; that the mort,ii;ajj^<'e of 
 a ship can no lonj»er, in any manner, be consi- 
 dered as a trustee for the mort^a^or, and that 
 his ri<;ht or equity of redemption is consequently 
 ^one for ever. An<l the opinions of the above- 
 mentioned learned Judji^es, as ^iven in the dif- 
 ferent reports, are referred to in tlie su[)port, 
 and as confirmatory, of this doctrine. If, how- 
 ever, we either examine tlie lanp;uaj:^e in which 
 these opinions have b«'en expressed, or consider
 
 riiKi*. v[.j of a Mor linage of a Ship, c^t. [)1 
 
 th«' natnrt^ of tlie cii.ses then in contemplation, 
 and to Nvliich tliey must have been intended to 
 have had reference, we shall find that tiiey could 
 allude only to trusts of the nature first above 
 spoken of, and cannot be considered as em- 
 bmciniz: that species of trust, which is always 
 vesteil in a mortgagee; unless, indeed, it can be 
 said, that there is no such real distinction, as 
 here insisted on, between these different kinds 
 of trust. 
 
 It may be contended, however, that, admit- 
 ting the above distinction between these dif- 
 ferent species of trust to be well founded, the 
 same policy, which requires the abolition of the 
 one, is equally hostile to the existence of the 
 other ; and that the different opinions of the 
 Judges, so strongly expressed, upon the policy 
 of these acts, as we find them to have been, 
 although given with reference to the cases re- 
 spectively before them, must be considered aa 
 applicable, though not immediately intended by 
 them to be applied, to the existence of all trusts, 
 of whatever nature they may be; except, as we 
 have seen before, as to such trusts as arise from 
 the mere operation of law. 
 
 The great object of the registry acts was, cer- 
 tainly, as frequently expressed by Lord Eldon,
 
 f)B Oj (Jic J'dlidihi [chap. Vi_ 
 
 to KtMMirc I'vidciuT ol'llir tillr to a slii|> iVoni the 
 (iinc of \\v\' orii»in, that it iMii;lit be known, 
 tlnoiiiihout licr oxistenre, how far slic lias h<'eii 
 British-l)uilt and British-owned, and tlieichy to 
 insure tlie means of enforeini;' tlie navi^^ation 
 laws of the romitry ; hut if, nj)on a transfer of 
 a ship 1)y way of niorti^ane, all the j^uards, pro- 
 vided hy the registry acts, have been strictly 
 attended to, in tlie same manner as n])on an 
 absolute sale, (and it is admitted that every 
 title, whether the party claim as mortp;a2;ee, or 
 as absolute purchaser, must be defective, w here 
 any of these have been nej'lerted,) it may be 
 asked, in what respect, or in what manner, will 
 such object of the act be defeated by tin; ad- 
 mission of this mode of transfer ? The interests 
 of all parties, whatsoever they may be, will ap- 
 pear upon the certificate of registry, in the man- 
 ner required by the acts ; and all that is neces- 
 sary seems to be, to add a few words to tiie 
 form of the indorsement ftiven by tlie act, as 
 already pointed out;* for, if there be really no- 
 thing- in the letter, or in the spirit, of tiiese acts, 
 prohibiting the mortgage of a ship, it will 
 scarcely be contended, that the right of dispos- 
 
 * Tlir-re socnis to he iiothini; in the act lo prevent any thing 
 being added to the form of indor.scnient there piven, provided 
 that form, as far as the same is there specified, is adopted.
 
 (ii\p. \i.j (if (I j\f(>r(<!;(iu:c of a Ship, S^-r. ,00 
 
 iii^ol" |H()|M'it\ in this inaimcr (^an he taken away 
 hy them, and tliatthe Court of Chancery can be 
 <h'|)ii\('<l ofoiir of its i;r(?atest brandies of juris- 
 diction : or that thr lep;islature itself can be 
 made subsrr\ ient to the <:;r()ssest s|)eeies of 
 fraud, merely from the infle.\i]>le nature of a 
 few words set forth in a mere form, directed to 
 be made use of in one of these acts ; and there 
 intended, as it would seem, to be applicable to 
 one mode of transfer only. 
 
 In concludin;; tliis part of the subject, it is, 
 perhaps, Avortliy of notice, that although no 
 case has arisen, as before remarked, expressly 
 requiring the decision of the Court as to the 
 validity of a mortgage of a ship, or as to the 
 right of redemption remaining in the mortgagor, 
 yet cases are not wanting, in which the validity 
 of such mortgages have been undisputed, and 
 seem to have been assumed and admitted by the 
 Court. Lord Hardwicke refers to a decree 
 made by Lord Ilarcourt, in the case of a mort- 
 gage of a ship, which was captured while at 
 sea, whereby the executors of the mortgagor 
 were made to pay the money for which the ship 
 had been mortgaged.* This case is sufficient 
 to shew, that there was no impediment to the 
 
 * See King i . King, 3 P. Wms. 360. ' 
 n 2
 
 100 Of the J^alidlty [chap. vi. 
 
 mortgage of a ship, prior to the more recent 
 statutes we have been particularly contemplat- 
 ing ; but many cases have occurred, posterior to 
 the passing of these acts, from which it may be 
 collected, not only that ship-owners are in the 
 continual practice of exercising this right of dis- 
 position over their proj)erty, but that this mode 
 of disposition has been unquestioned, and may 
 be considered as having received the sanction of 
 the Courts. In each of the cases, of Hibbert v, 
 RoUeston,* and Mestaer v. Gillespie,! so often 
 before referred to, the question arose uj)on the 
 transfer of a ship by w ay of mortgage ; but no 
 objection was taken, either at the bar or ?)y the 
 Court, on that account. And in a late case, be- 
 fore the Court of Common Pleas, J it appeared, 
 that the owner of a ship, upon receiving a loan 
 of ^200. from a broker, had executed a bill of 
 sale of a vessel to him, whereon was an indorse- 
 ment, that the assignment was made as a lien or 
 security for the loan, with a power of sale, &c. ; 
 but the forms of the registry acts not having been 
 complied with, and the security therefore failing 
 as a mortgage, it was contended, that the broker 
 might recover against the assignees of the owner 
 of the vessel, who had become a bankrupt, as 
 
 • 3T. R. 709. and 3 Br. C. C.671. f 11 Vcs. G26. 
 
 I \^'iIson :. H.-atlirr, 6 Taunt, C«.
 
 CM A 1'. VI.] oj a Mortgage of a Ship ^ S>;c. 101 
 
 havinp: a lien upon the ship under the assign- 
 ment. The Court, however, was of opinion, 
 that w hat was intended }>etween the parties was 
 a niort^aj^e, and not a lien ; but that the security 
 was defective as a mortgage, inasmuch as the 
 forms prescribed by the acts had not been at- 
 tended to. 
 
 CHAP. VII. 
 
 Of the Liahility of a Mortgagee of a Ship, for the Repairs 
 or Supplies furnished for the Use of the Vessel, 
 
 AVe have now to consider, and to offer a few 
 observations on, tlie liabilities thrown upon a 
 party taking a transfer of a ship by way of mort- 
 gage ; and as these may be of a very serious na- 
 ture, and no inconsiderable doubts have arisen 
 as to the extent of them, it is extremely impor- 
 tant to all parties, and particularly to the mort- 
 gagee, that they should be inquired into, and 
 ascertained as far as possible. A learned writer, 
 indeed, upon the law of shipping, now filling 
 the highest situation in the Court of King's 
 Bench, after stating the difference of opinion at 
 that time existing upon the subject, observes, 
 *' that every p<M:^ou who takcfi a mortgage of a
 
 10*2 Oj the Liabilit I) of a Mortgagee [chap. vii. 
 
 ** ship must, until tlie question sliall liave re- 
 '• ceived a more solemn determination, consider 
 ** it j)ossible, at least, that he may expose him- 
 ** self to a loss, by the very act from \vhicli he 
 *' expects a security." * 
 
 The conduct and management of a ship being 
 always entrusted to the master, he is considered 
 as the confidential servant or agent of the owners 
 at large ; and, in conformity to the known rules 
 and maxims of law in all cases between princi- 
 pals and agents, the owners are bound to the 
 performance of every lawful contract made by 
 the master, relative to the repairs and usual em- 
 ployment of tlie ship.j The question is, there- 
 
 * Abbot on Merchant Ships and 8oamcn, 20. 
 
 t In order, however, to maintain an action against an 
 owner of a ship, upon a contract made by the master, tlie 
 plaintiff must be able to shew that the supplies t'urnishcd by 
 the Master's order were reasonably tit, and proper tor the oc- 
 casion ; or, in the case of money advanced to him for tin- pur- 
 chase of them, that the money was wantinj? for that purposo. 
 See the case of Carey r. \\'hite, 5 Brown's Pariiamcutary 
 Cases, 325 ; l)ut more fully reported in Abbot on Shipping:, 
 4th edit. 12I>. This case not only estal)lishrs the priuc-iple of the 
 personal responsibility of the own«irs, but at (he sauir time siif>> s, 
 fliat lli«>ir responsibility is limited to such (liiuns as arc ticcrs.sari/. 
 ^^'llat may «)r may not come under this ;;cn( ral term, has fre- 
 fjueutly bti II a subject of dispute; audit has sometimes been 
 attempted to confine it to such repairs or supplies as were
 
 (HAP. vii.J ()J' a Ship Jhr Repairs, i^c. 103 
 
 lV>n\ whctluT tlic mortjia^or, or tlie moit;j;ap;rc, 
 of a ship, is to be deeme'd in law the owner of 
 it; and as such owner, entitled to the benefits, 
 and liable to the burdens, attached to that cha- 
 racter. 
 
 If the niortg:agee take possession of the sliip 
 by virtue of the assignment to him, he holds 
 himself out as owner to all the world, and, of 
 course, no question can arise as to his liability ; 
 but where a security only is intended, it is gene- 
 rally the practice, to leave the mortgagor in the 
 full disj)ositi()n of the ship ; and it may be, and 
 probably is, quite unknown to the party having 
 claims upon it, that the mortgagee has any inte- 
 rest whatsoever in the vessel ; and therefore it 
 becomes necessary to consider how far, and un- 
 der what circumstances, the legal title and 
 ownership carry with them, or attach to them- 
 selves, the responsibility of paying for repairs, 
 or other necessaries, ordered by the master. 
 
 absolutely necessary. It has lately, however, been laid down 
 hy the Court of King's Bench, that that construction is too 
 narrow ; and that there is no better rule for ascertaining what 
 shall be considered necessary, tlian by leaving it to the jury to 
 decide what a prudent man, if present, would have done under 
 circumstances, in whicli the agent, in his absence, has been 
 called upon to act, A>'eb!ster v. Scekness, 4 Barnw. & Aid.
 
 1 04 Of the Liability ij ' a Mortgagee [c h a »» . mi. 
 
 It is from some very late determinations only* 
 that any doubt appears to have arisen upon this 
 question ; for if we consult the earlier cases 
 upon the subject, \ve shall tind, that tlie Courts 
 Mere not accustomed to consider the mortgagee 
 of a ship so far the owner of it, as to make him 
 liable for repairs, &c. In the caseof Chinnery r. 
 Black])urn,*\vhicli came before the court of King's 
 Bencli, in Easter term 1784, an action had been 
 brought by a mortgagee for the freight of goods 
 accrued due after the mortgage, but previous to 
 his having taken possession of the ship ; and the 
 Court held, that the action could not be main- 
 tained, unless the mortgagor, continuing in pos- 
 session, was to be considered as the servant and 
 agent of the mortgagee ; which, they said, was 
 not the case : but tliat, until the mortgagee took 
 possession, the mortgagor was owner to all the 
 world ; — that he bore the ewpences, and was to 
 reap the profits. And Mr. Justice Bullcr added, 
 *' If the mortgagor be considered as agent, he 
 •' must be so throughout ; and tlieu tin- niort- 
 '• gagee would be answerable for every loss, 
 " damage, kc/' 
 
 Shortly after the decision of this case, tha( of 
 Jackson V. Vernon t came before the Court »»f 
 
 • 1 Hen. Black. 117, note. t 1 Ilm. IM;.. k. i n.
 
 t HAP. \ 1 1 . j of a Ship J or Rtpair.s, ^c. 1 05 
 
 Coniinon I*lc;is ; and lien* two (jiu'stions arose ; 
 first, wlu'thor the dt rcndaiit, aj^ainst whom an 
 action liad been l)r()ught lor supplies f'iirnish(*<l 
 to a ship, was, under the circumstances of the 
 case, to be considered as the absolute owner, or 
 only as mortpij^ee ; and if the latter, then, se- 
 condly, whether a mortgagee was liable for 
 necessaries provided for a ship before he took 
 possession ; and the Court having been of opi- 
 nion, under the first point, that the defendant 
 was merely a mortgagee, gave judgment in his 
 favour; declaring, that a mortgagee out of pos- 
 session was not answerable for the contracts of 
 tJie mortgagor. 
 
 The authority of these cases, however, lias 
 been much questioned. In Westerdell v. Dale,* 
 it was decided by the Court of King's Bench, 
 that an action for the repairs of a sliip migiit be 
 maintained against a party as the legal owner, 
 who had executed a bill of sale of his share to 
 another, but had not duly complied with the 
 forms made necessary by the 26 Geo. 3. c. GO. 
 so that the legal title still continued vested in 
 himself. In this case, it was strongly argued 
 on the behalf of the defendant, that he stood in 
 the character of mortgagee of the ship ; the per- 
 
 • 7 Ttrin. lUp. 30t>. Trin.tiriii 1707.
 
 1()(» Of the Liabilihi of a Moyf<j;{hj;c€ [chap, vii^ 
 
 stm to wIkhii till* liill of sale had been made hav- 
 \\\\x. taken possession of the sliip, and afterwards 
 executed aiiotfier l>ill of sale to the defendant by 
 way ot" niorti;a^e ; and that the deftnidant, not 
 liavinj;- taken possession in the character of niort- 
 jT'ij^ee, he could not he charged witii the repairs. 
 The Court, however, althou,i;h, under the cir- 
 cumstances of the case, they w ere of opinion 
 that the action was rii^htly l)roua:lit against tiie 
 defendant, not as mortgagee, but as the abso- 
 lute owner of the ship, and therefore decided 
 tlie case upon this point ; yet, in giving their 
 judgment, expressed a very strong doubt as to 
 the validity of the cases exempting a mortgagee, 
 who has not taken possession, from such liabi- 
 lity. As to the cases respecting mortgagees. 
 Lord Kenyon remarks, that, whether in or out 
 of possession, they were the legid owners, and 
 must be so considered in a court of law , not- 
 w ithstanding their titles were subject to equita- 
 ble interests. " It is said," continued his Lord- 
 siiip, " in one of the cases, that a mortgagee is 
 '■' only liable when in j)ossession ; and that, what 
 *' proves this point is, that, in charging the 
 " mortgagee, it is necessary to state, in plead- 
 " ing, tiiat he entered anrl poss«^ssed : but, with 
 *' great defert'iice to the Iranwd .Judge who gave 
 " that rc-.isdii, I (I'tiibl it ; I coiisidrr those as 
 " nitic liiiinal \\»t|-.|>. It lia>- aUn been ari^iUMJ,
 
 cnAi*. Ml.] of a Ship Jor Repairs, ^-c. 107 
 
 " that tlwr*' is a (lidcrcnrc hotween a niortgaj^e 
 *• of real, and personal, j)roperty : hut that tlis- 
 *♦ tinction afVords a stroni; ar<::«itnent au:ainst the 
 " niorti;a;;e(' of a ship ; tor the instant a transfer 
 ** of tlie ship is made, tliough by way of mort- 
 " oaj;e, the mortj^ajj^ee may state that he was 
 " possessed : in all actions of trover brought by 
 ** the assignees of a bankrn])t, for property be- 
 '* longing to the bankrupt, they state that they 
 " were possessed. It is not necessary, how- 
 ** ever, to decide these points in this case, and 
 " therefore I avoid giving any positive opinion 
 '* upon them : but, as several cases have been 
 " cited, I have thought it right to throw out 
 " tliese doubts, lest, whenever the questions 
 *' should arise again, it may be supposed that I 
 *' have acquiesced in these determinations." 
 
 Two cases, however, have lately occurred at 
 ISisi Prius ; in the tirst of wliich it was decided, 
 that a master of a ship could not maintain an 
 action for wages and disbursements against a 
 mortgagee, who had not taken possession ; and, 
 in the second, that an action would not lie 
 against such mortgagee for necessaries supplied 
 for the use of the sliip. It ^^ill be necessary, 
 however, to look into the particular circum- 
 stances of these cases; and although we shall 
 fnid that if cannot be iiit'crrrd tVoni thnn, tliat a
 
 lOa Of the Liabilitii of a Mortgagee [chap. tii. 
 
 mortj^cijjee of a ship, not having taken posses- 
 sion, shall in no case be liable in the character 
 of oAvner ; yet, a due attention to these cases 
 ^^ ill load us, in a i^reat measure, to discover the 
 true principle upon uhich this important ques- 
 tion ought, perhaps, to be decided ; and upon 
 ^\hicll, it may be presumed, the courts of law 
 may act, whenever the question may be directly 
 brought before them. 
 
 The first of these cases is that of Arnett v. 
 Carstairs and another.* In August 1810, Mas- 
 son being the sole owner of the ship in question, 
 duly executed a bill of sale thereof to the de- 
 fendants, for the purpose of indemnifying them 
 against the penalties of a bond to the crown, 
 into which they had entered as his sureties. At 
 the same time, a mortgage was executed by 
 Masson, conveying the vessel to the defendants 
 for such purpose of indemnification ; and con- 
 taining, on the part of the defendants, a cove- 
 nant to re-transfer her to Masson. Under these 
 circumstances, an action was brought by the 
 plaintiff, as master of the ship, against the de- 
 fendants, as the legal owners. It was proved 
 at tiie trial, that tlu; plaintiff had, previously to 
 the exe(!ution of the bill of sale and mortgage, 
 
 : iK'kiiii.I.. II, ;iOI.
 
 CHAI'. vij.j oj'a S/uJ)J'or Jiipairs, i^c. lO.O 
 
 hecn employed by Masson as the mast<.*r of the 
 vessel ; that he had no direct infoniiation of the 
 above transaction ; but that tlic indors<Ml certifi- 
 cate of registry had been delivered to him,* 
 which shewed that the defendants had l)ecome 
 the registered owners ; — tiiat he had never been 
 introduced to tliem, or received any orders from 
 them, or had any communications with thinn, 
 respecting tiic concerns of tlie ship; — that, on 
 the contrary, he had continued to deal and cor- 
 respond with Masson as the owner. — ^lliat soon 
 after the tj^ajisfer he sailed to the West Indies, 
 and thence to tlie Havannah, from which he had 
 brought home a cargo to England. — That, dur- 
 ing the voyage, be had received Masson 's in- 
 structions for his conduct ; and, on his return, 
 had given the documents for receiving the freight 
 to Masson, who had received it accordingly, and 
 
 * The certificate of registry is necessarily in the custody of 
 the master. By the 15th section of 2G Geo. 3. c. 60, the mas- 
 ter is compelled to execute a bond, under certain penalties, not 
 to sell, lend, or otherwise dispose of, the certificate ; and, 
 upon loss or capture of the ship, to deliver up the certificate 
 at the first port at which he shall arrive. And hy the 34th 
 section of the same act, the master is required, under a penalty 
 of £100, to produce, upon demand, the certificate of registry, 
 to the principal officer, &c. of every port in his Majesty's do- 
 minions, or to tlie British consul, Sec. in any forei^ port in 
 which buch ship shall arrive.
 
 110 Ql'tJic L'uthilit}/ of a Moi'fgagee [chap. vii. 
 
 applied it to his own use. It was for the 
 plaintirt's wa^es and dislmrseiin'iits duriiij^ this 
 voyaLi;*' that the action was hroii<i,ht. It was fiir- 
 tlier found, that .soon alter tiie ship's return, sht? 
 had been l)roken up as unserviceable, without 
 ha\ ing heen taken possession of by the defend- 
 ants, \vho had iu'\«'r derived any benefit from 
 her earninii;s or proceeds. Under these circum- 
 stances, it was contended, that the plaintiff was 
 entitled to recover a^^ainst the defendants, a^ the 
 legal owners of the ship ; and particularly, as the 
 certificateof registry containing- the indorsement 
 of the bill of sale to the defendants, informed 
 the plaintifl's of the chan<j^e of title ; and that the 
 master, or other person, ha\ ing a claim against 
 a ship, might resort to the legal owners ; and 
 was not bound to inquire whether they were 
 mortgagees or trustees, or were beneficially and 
 exclusively interested. Lord Ellenborough, 
 how ever, was of opinion, that the (piestion for 
 the consideration of the Court was, to ascertain 
 the party with whom the plaintifl' had con- 
 tracted ; and as there was express privity of 
 contract between him and Masson, the Ugal 
 oxcncrship of the vessel had become immaterial. — 
 "^rhat t'Ule had nothing to do xcith these cases, and 
 that the Court must look to the contract be- 
 tween the parties.
 
 <HM». vii.] of a Ship far llcpdirs, S^c. Ill 
 
 'I'lu' other raso ;illu(lo<l to is (liat r)/"'J\\<'iity- 
 man v. Mart.* "^I'liis was an action of'assnnij)sit, 
 to recover the amount of necessaries |)ro\i(le(l 
 for a vessel, of which lh(* (lefen<hint was the 
 mort2;aj;ee. Flowerden, the owner of the vessel, 
 beinj:: indeljted to the defendant, indorsed the 
 certificate of re<»istry to him as a collateral secu- 
 rity, and afterwards a new registry was made in 
 the name of tiie defendant. The defenthint 
 afterwards delivered up the old certificate, hut 
 <lid not make a re-transfer of the vessel. The 
 order for goods was given by the caj)tain of the 
 vessel, w ho gave the name of FloAverden as the 
 owner; and tiie plaintiff knew^ no other than 
 Flowerden in the transaction. Under these cir- 
 cumstances, on the behalf of the defendant, it 
 was contended, that he was not liable to the 
 present demand ; and particularly the cases of 
 Jackson v. Vernon, and Chinnery v. Blackburn, 
 above noticed, f were cited, as decisive to shew , 
 that a mere mortgagee of a ship, w ho does not 
 take possession, is not liable for supplies pro- 
 vided for its use. And Lord EUenborough de- 
 cided, that since the repairs were done by order 
 of the captain, and the plaintiff knew no oxcner 
 except Flowerden, and the defendant was never 
 
 1 Starkie, 36G. f Page 104, supra.
 
 1 1*2 OJ tilt Liability of a J\/or/gagee [chap. vii« 
 
 in possession of the ship, the action could not 
 be sustained. 
 
 From these two cases it appears, that Lord 
 EUenhorough was of opinion, that an action 
 could not be maintained a<;ainstaparty (lie beinj^ 
 the owner of a ship), except upon the ground 
 of contract. But the real question that arises 
 in every case of this nature is, whether the 
 circumstances are such as to shew, that a con- 
 tract, either expressed or implied, existed be- 
 tween the parties. Contract, indeed, is the 
 very essence of the action ; and if the existence 
 of that, either expressed or inn)lied, is not 
 shewn, the action must fail in all cases. We 
 have already seen, that a party supplying; a ship 
 with necessaries, may maintain an action, not 
 only against the master, but also against the 
 owner of the ship : but in both cases the action 
 is founded upon contract : ag-ainst the master 
 upon his express undertaking, (indeed, without 
 such undertaking he would not be liable;*) and 
 
 * If the master take care, by the express terms of the con- 
 tract, to confine the credit to the owners only, Rich r. Coe, 
 Cowp. 636 ;t or if the contract be made l)y the owners them- 
 ■elves, or under any circumstances, which shew that credit 
 was given to them alone, the creditor can have no right of 
 action against tlic master. — I'arnier v. Davi-s, 1 T. U. 108. 
 
 t This wa^ un action, not uyuiiist the master, but againut
 
 CHAP. VII.] oj' a Ship fur Repairs, Si^c. 113 
 
 aj]jiiiiist the owner, nj)on the implied contract, 
 arisiui;- from tl»e circumstance of his having con- 
 stituted th(i master his agent. The real ques- 
 tion, in all tlw'se cases, as affecting mortgagees 
 not in possession^ seems, therefore to be this : — 
 Are, or are not, the circumstances such as to 
 afford evidence of an implied contract betw een 
 the parties ? In the one case he shall be liable, 
 in the other, not. If the party who has fur- 
 nished the supplies has received his orders from 
 the mortgagor, or has otherw ise treated with him 
 as the owner of the ship, and is ignorant that in 
 point of fact the ship has been transferred from 
 him to the mortgagee ; or even know ing that 
 fact, if he has done nothing from which it can 
 appear that he considered himself as liable, it 
 seems quite clear that the mortgagee, under such 
 circumstances, would not be held liable. In 
 the case of Tw entyman v. Hart, the order for 
 the goods was given by the master of the vessel, 
 who gave the name of Flowerden as the ow ner ; 
 and Lord Ellenborough remarked, that the plain- 
 tiff knew no other owner except Flow erden the 
 
 the owners of a ship ; the case, therefore, is not an express 
 decision of the point above stated ; but, in speaking of the 
 liabilities of the different parties, Lord Ellenborough states the 
 master to be personally liable, as making the contract. It fol- 
 lows, therefore, that he can be bound only according to the 
 terms of such contract. 
 
 I
 
 114 Of the Liability oj a Murtgagic [c h a p . v 1 1 . 
 
 mortjjaoor. In the case of Aiinett r. Carstairs, 
 however, where the claim was made hy the mas- 
 ter himself, it was expressly found, that the 
 master knew that the defendants had become the 
 registered owners (who, indeed, must always 
 be known to the master, he beini;- by law, as we 
 have seen, the constant depositary of the certi- 
 ficate of registry), and the action was brought 
 for wages that had become due subsequently to 
 the transfer ; yet, inasmuch as the plaintiff, the 
 master, had always continued to treat and cor- 
 respond with the mortgagor as owner of the ves- 
 sel, Lord EUenborough seems to have been of 
 opinion, that that was suflicient to exclude the 
 presumption of his having given any credit to 
 the defendants. There was no contract, there- 
 fore, either express or im])lie(l, between the 
 master and the defendant, the mortgagee. 
 
 In both of these cases, we have seen that the 
 party bringing his action liad considered the 
 original owner, or mortgagor, of the ship, as the 
 real and substantial owner; and that he was the 
 person, therefore, to whom the credit had in 
 fact been given. The one case absolutely pre- 
 cluded, — the circumstances of the other forbad, 
 the presumption of any contrary inference.
 
 CHAP. VI I. J (>/'(( Shil) for Rcjxiirs^ S^r. Il."i 
 
 Thai (liis is tlio r<Ml nround upon \'\hi('h all 
 casrs of this natun^ ()U}>lit to stand, will further 
 appear, if we take notico of the doctrine that has 
 been laid down hy the Courts in some other 
 cases wherti relief has been sought, not, as in the 
 former cases, a,i;ainst (he mortgagee, but, against 
 a party appearing to be the legal owner on the 
 face of the certificate of registry, but w here the 
 beneficial ownership has been in another. 
 
 The earliest case of this nature seems to be 
 that of Young and another v. Brander and ano- 
 ther.* This was an action in assumpsit, for 
 work and labour done by the plaintiffs, at the 
 request of the defendants. The defendants, who 
 were owners of the ship Rebecca, by bill of sale, 
 executed on the 2()th of May 1804, transferred 
 all their interest in the vessel for a valuable con- 
 sideration to one Thomas Brander, w ho imme- 
 diately took possession, and from that time 
 acted as the sole owner of the ship. All the 
 forms of the registry acts were complied with, 
 except that the purchaser did not deliver a copy 
 of the indorsement on the certificate, to the per- 
 sons authorized to make registry and grant cer- 
 tificates, until the 23d of June following, w hen 
 he obtained a new^ certificate of registry. The 
 
 * 8 East, 10. 
 I 2
 
 1 1 Of the LiahUUy of a Mortgagee [f hap. v i r . 
 
 names of the defendants, of conrso, remained on 
 the registry at the Custom-house as owners (but 
 this did not appear to have been with their con- 
 currence,) until the 23d of June 1H04, >vhen 
 such new certificate ^vas granted. On the lUli 
 of June 1804, the captain of the Rebecca, by 
 order of Thomas Brander, took the vessel to 
 the plaintiffs to be repaired for her outward 
 voyage ; who thereupon made the repairs, &c. 
 which were the subject of this action, between 
 the 11th and 19th of June 1804. No notice had 
 been given by the defendants to the plaintiffs of 
 the change in the partnership previously to the 
 work being done. Under these circumstances 
 the plaintiffs liad a verdict for tlie amount of tlie 
 repairs, subject to the oj)inion of the Court, 
 whether they were entitled to maintain the ac- 
 tion. When the case came on to be argued be- 
 fore the Court of King's Bench it was con- 
 tended, on the part of the plaintiffs, that, as the 
 defendants continued the legal owners of the 
 ship, till after the time when the repairs were 
 made, by reason of the requisites of the registry 
 acts not having been complied m ith ; and with- 
 out which, it was said, no property in the ship 
 could pass from them to the vendee ; they were 
 consequently liable, as owners, for repairs or- 
 dered by the captain. The Court, however, 
 were of opinion, that the case was too clear to
 
 CHAP. VII.] (f/' a Ship fur Repairs, c^c. 117 
 
 ie<iiiire an argument. " It is true," said Lord 
 EUenborougli, in j^ivinj; the judgment of the 
 Court, *' that tlie requisites of the act have not 
 " been complied witli ; and it is true, that tlie 
 " owners of a ship are liable for repairs ordered 
 ** for them, or for their benefit, by their master; 
 *' but it was never heard of, that if a stranger 
 " ordered repairs for another's ship, or carriage, 
 " tiie owner was liable for such repairs. Sup- 
 " pose a pirate ran away with a ship, would the 
 " owner be liable for repairs ordered by him? 
 " Now here, the captain, by the order of Tho- 
 " mas Brander, the purchaser, who was a mere 
 " stranger to these defendants in point of law, 
 *' directed the plaintiff to make the repairs: 
 " how, then, can the defendants, merely be- 
 " cause they remained as owners upon the regis- 
 ** ter, be liable for repairs ordered by the cap- 
 " tain, under the authority of a stranger to the 
 " defendants?" 
 
 The next case for our consideration is, Tre- 
 whella and another v. Rowe.* This was an'ac- 
 tion of assumpsit, brought against the defendant 
 as owner of a ship, for goods supplied for its 
 use. At the trial, it appeared, that the goods 
 had been provided under the orders and direc- 
 
 * 11 East, 435.
 
 118 O/'t/it: Llab'iiitii of a Mortgagee [(Hap. vii 
 
 tions of one Parnall, then the sole registered 
 owner of tlie ship ; but before all tlie articles 
 ^vere delivered on board, he transferred all his 
 interest tiierein to the defendant, by bill of sale, 
 dated the 15th of December 1807, which Mas 
 duly registered. A verdict was given for the 
 plaintiffs ; but on a motion in the Court of 
 King's Bench for a new trial, it was held, that 
 the purchaser of the ship Avas not liable for any 
 of the goods, although they had been delivered 
 on board after the sale to him ; such goods hav^ 
 ing been furnished by virtue only of the previous 
 order of the vendors, to whom the credit had 
 been personally given. In the same case, it was 
 attempted to make the defendant liable for such 
 of the goods as had been furnished before the 
 legal title had been transferred to him, upon the 
 ground of an agreement for the purchase having 
 existed between Parnall the vendor, and the 
 defendant, previous to the time of the orders 
 having been given for the goods. The Court, 
 however, said, that the verdict was against all 
 the evidence : that there was no evidence to 
 shew, that any personal credit had been given to 
 the defendant ; and tliat all the goods had been 
 supplied upon the orders of Parnall, given before 
 the time of the purchase. The motion having been 
 granted, the cause was again tried, before Mr. 
 Baro)i GrahHin, >\hfn hr \vn*« clearly of opinion,
 
 (HAP. VI 1. J <iJ'a Sliipjor Rtpairs, S^c. UN 
 
 lliat the (K'fciuhint could not be fixed with the 
 ]»avin('nt of any i;oo(ls furnishi'd by the plaintiffs 
 upon the orders of Parnall, before the defendant 
 had any le^al title in the ship conveyed to him. 
 But the plaintiffs afterwards proving, for the 
 <irst time, that certain ^oods, to the amount of 
 about ct*4(), had been delivered upon the oi^dcr 
 of the captain, after the 15th of December, 
 when tiie defendant became owner, and, there- 
 fore, upon the defendants credit, the learned 
 Jud|u;e permitted the plaintiffs to recover a ver- 
 dict for that sum only ; in which judgment both 
 parties seem to have acquiesced. 
 
 Another case* shortly afterwards came before 
 the same Court, wherein it was decided that the 
 registered owner of a ship was not liable, as suchy 
 for stores which had been supplied for her use. 
 The defendant, being the registered owner of a 
 ship, let the same by a charter-party, at a cer- 
 tain rent, to one Walker, who was then the 
 master ; and the action was brought for the 
 value of stores supplied by the plaintiff, accord- 
 ing to the order and directions of the master, 
 given by him subsequently to the date of the 
 charter-party. But Lord Ellenborough, before 
 whom the cause was tried, nonsuited the plain- 
 
 iViistr i. Marsh, 13 Ka>t, 20a.
 
 1 20 Of the L'nibUiti) of a Mortgagee chap, v i i . 
 
 tiff; being of opinion, that, during the existence 
 of the lease, the relation of master and owner 
 ceased to subsist between Walker and the defen- 
 dant, and that the stores must be taken to have 
 been ordered on Walker's own account. A mo- 
 tion was afterwards made to set aside the non- 
 suit, in sup])ort of which the case of Parish v. 
 Crawford,* before Lord Chief Justice Lee, was 
 
 * Shortly reported in 2 Stra. 1251 ; but more fully in Abbott 
 on Merchant Ships and Seamen, 22. Many other cases have 
 been decided ^ince that of Parish r. CraM'ford ; wherein it has 
 been held, that, by a charter-party, the liability of the original 
 owner is transferred to the charterer /;/o /lac vice. See James r. 
 Jones and others, shortly noticed in Espinasse's Nisi Prius 
 Cases, 3 vol. 27 ; but of which a more full statement is givei) 
 in Abbott, 23. Mackenzie r. Howe, 2 Campb. 4H2. Valley 
 r. Wheeler, Cowp. 143; and particularly, llatton v. Bragg, 
 7 Taunt. 14. and 2 Marsh. 339. In speaking of the case of 
 Parish r. Crawford, the learned author above-mentioned says, 
 " Probably it ia not now to be considered as law.'' And the 
 same case having been quoted in Ilatton v. Bragg, Gibbs C.J. 
 remarked, that that case had frecpiontly been questioned, and, 
 in two cases, formally over-ruled. It may be doubtful, how- 
 ever, whether these latter cases are really inconsistent with 
 that of Parish v. Crawford. It must be observed, with respect 
 to the last-mentioned case, that although the defendant had 
 chartered the ship to anotlier fur the voyage, it was expressly 
 liuiited to the freight of the goods, tlie freight of the passen- 
 gers haviiur l)een expressly reserved to tin; def«ndant himself. 
 The (hjfendaut also appointed the master, and covenanted with 
 tlic chart(r(T for tlir condition of the '.hip and behaviour of
 
 ciiAF. VII.] of a Sli'ip for Repairs, i^c. V2\ 
 
 n'ferred to, where tlie owner of a ship, chartered 
 by iiiiu to anotlier, was hchl liahle to the owner 
 of ij;oods tnken on hoard hy tlie charterer, who 
 received the frei';lit, hut did not (ieliver the 
 jj:oods : and it was contendetl, that tliird per- 
 sons liave a ri;jcht to hold the registered owner 
 lia])le to them for the acts of the captain. The 
 Court, however, were of opinion, that the re- 
 
 the niii^tt-r. And Cliiot" Justice Lee, in giving his judgnifiiit, 
 particularly rdicd upon the circumstance of the defendant con- 
 tinuing to have the direction of the persons navigating the ship, 
 as aflording a groiuid of implied contract betv, eon the plaintiff 
 and the defendant, as owner ; and, in fact, the whole question 
 turns upon this point, i. e. whether the circumstances are of 
 such a nature as to give rise to an implicit cojitract. The vali- 
 dity of the case of llatton r. Bragg itself has been frequently 
 questioned; and, perhaps, it can no longer be cited as good 
 law. 8ee the cases of Tate v. Meek, 2 Moore, 278 ; Yates r. 
 llaitsbon, ib. 21)4; Yates t. Mennell, ib. 297; Saville r. 
 Campion, 2 Burn. tV Aid. 503 ; and particularly that of Christie 
 X. Lewis, 2 Brod. iV Bing. 410. In this case, speaking of 
 Jlatton r. Bragg, Mr. Justice Burrough expressly says, " I 
 *' confess I think it is not law ;" though the other Judges seem 
 to think that the latter cases may be reconciled with it. The 
 sinqde (piestion in all these cases was, whether the owner, by 
 reason of the clurter-party, had entirely divested himself of the 
 ownership pro ilia lire. As bearing on the question in the text, 
 therefore, they have all the same tendency : they all prove, 
 that an owner of a ship may part w ith his property, or devest 
 iumself of that ownership pro tanporc, and convey it to another, 
 witii'iiK cniplyiiii: with the fornis of the registry acts.
 
 1-- Of iJic Liabillti/ oj'a ]\Iortgagce [chat. yii. 
 
 ijjititr^- acts uere passtxl diverso intuitu-^ and that, 
 to say lliat the registered owner, \s\\o divests 
 himself, by the charter-pary, of all control and 
 possession of the vessel, for the time being, in 
 favour of another, mIio has all the use and bene- 
 tit of it, is still liable for stores furnished to the 
 vessel by the order of the captain during the 
 time, would be pushing the efl'ect of those acts 
 much too far. — That the question was, whether 
 the captain (in the case before the Court), who 
 ordered the stores, were, or were not, the ser- 
 vant of the defendant, who was sued as owner. 
 And, as they did not stand, at the time, in the 
 relation of ow ner and master to each other, the 
 Court was of opinion, that the captain was not 
 the defendant's servant, and, therefore, that the 
 latter was not liable for his act.* 
 
 * From the report of this case given in 2 Camp. 517, it ap- 
 pears that the legal title to the ship had not been transferred to 
 the defendant till the beginning of the year 1810, and that the 
 agreement for the hire of the ship for three years took place in 
 1000; before the expiration of which period the goods in ques- 
 tion ha<l been supplied. It was clear, therefore, that the de- 
 fenilant could not be li;il)le for such goods in any sense. lie 
 was not the registered ownor till after the charter-party must 
 have expired; and ther«' was no j)re<ence to chiirge him under 
 any special eontra<'t. lender these circumstances, it is diffi- 
 cult to conceive how the point could have arisen, upon which, 
 according to the report given in E'ast, the Conrt of King's 
 iJench appeiM to have decided this ca>e.
 
 CHAP. VII.] oj a Ship J or Repairs, S^c. 123 
 
 From the whole of these cases which wo have 
 now been examining, it evidently appears, that 
 the Courts have never considered the registered 
 owners of a ship to be lial)le, merely as such. 
 The question has always been, whether there 
 has been any direct contract between the par- 
 ties; or whether the circumstances of the parti- 
 cular case have been of such a nature, as that 
 the existence of a contract between them must 
 have been implied. 
 
 In Young *o. Brander * we have seen, that 
 Lord Ellenborough expressly said, the owners 
 of a ship are liable for the repairs of a ship 
 ordered for them, or for their benefit , by the mas- 
 ter. In Trewhella v. Rowe,t the same learned 
 Judge grounds his judgment upon the circum- 
 stance of there having been no evidence to shew 
 that any personal credit had been given to the 
 defendant ; the goods having been supplied upon 
 the order of another, given by him in the cha- 
 racter of owner. But in the same case we find, 
 that the defendant, upon the second trial, was 
 held liable for the amount of goods furnished by 
 the master for the use of the ship, after the ex- 
 ecution of the bill of sale to the defendant ; 
 
 * 8 East, 12; j)age llu, supra. 
 + UEasf.. 1:38; page 117, supra.
 
 1-21 Of t lie LiabU'itij of a j\fortgagce [chap. vii. 
 
 altliou*;'h there was no evidence to shew, that 
 tliese 5;oods had been furnished with his know- 
 Iedjz:e, or that tliere had been any direct con- 
 tract between liim and tlie jdaintiflf respectinj^ 
 them : it was lield sufficient, tliat the goods had 
 been supplied upon his credit, and for his be- 
 nefit. For these he was lield liable, under the 
 responsibility attached to him in the character 
 of owner, by virtue of the implied contract, that 
 he would fulfil the eng'ag:ements of his agent, the 
 master. And again, in Fraser v. Marsh,* Lord 
 Ellenborough says, the question is, whether the 
 captain, who ordered the stores, were, or were 
 not, the servant of the defendant, w ho is sued 
 as owner. We may say, indeed, that this must 
 always be the question in cases of this nature ; 
 but there is sometimes great difficulty in decid- 
 ini^ whether the master shall, in law, be con- 
 sidered as the agent of the owner, or not. We 
 have seen, tliat where a party, furnishing sup- 
 plies for the use of a ship, receives his orders 
 from, and treats with, another, as owner of thp 
 vessel, no contract can be sup})0sed to exist 
 lietween him and the registered owner, merely 
 as such owner; and therefore, that the latter is 
 not liable ; and that such liability will not attach 
 its«lf upon him, even altliough the i)arty fur- 
 
 * i:) East, 210; supra, lit).
 
 MI \ i» . V 1 1 .] of a SIi'ip J or Repairs, ^ c. 1 2 '> 
 
 nisliing- the supplies knows that the sliip is 
 standing in liis name as tlie lej^al owner, as in 
 the case of tlie master bringing liis action 
 against the registered owner for wages, &c. 
 when he had always his orders, and treated with 
 another in that character. These are cases of 
 express contract between the respective parties; 
 and tlie effect of an express contmct w ith one 
 person in the character of owner, seems to ex- 
 clude the idea of any contract arising by impli- 
 cation between the claimant and any other per- 
 son, although that other person may sustain the 
 character of real owner. We have seen, also, 
 that w here the party furnishing the supplies has 
 no knowledge of the ow ner, — has never consi- 
 dered, or treated with, any person in that cha- 
 racter, but has received his ordersyro/w the inas- 
 ter alone, that, in such cases, he may maintain 
 an action against the owner, as in the above- 
 cited case of Trew hella v. Rowe.* These are 
 cases of implied contract, which are always 
 presumed to exist between the party furnishing 
 the goods and the owner, unless there is some 
 other person to whom, in fact, the credit has 
 been given in the character of owner. 
 
 O' 
 
 * 11 East, 438.
 
 1'20 Of the LlahiVily of a Mortgagee [chap. vii. 
 
 From the whole of what has been advanced it 
 would s(>t'ni to follow, that a mort,t;a,i;ee of a 
 ship, not having taken upon himself the posses- 
 sion, or in anywise interfered witii the manage- 
 ment of the vessel, so as to aftbrd evidence of 
 ownership, can only be liable in cases where the 
 party claiming has not treated with any other 
 person as the owner ; but liaving no knowledge 
 whatsoever of the owner, has acted upon the 
 authority of the master alone. Hence arises an 
 implied contract between him and some other 
 person, although unknown to him, a iz. the 
 owner of the ship, upon whose credit he has fur- 
 nished the supplies; and the question is, who 
 is this unknown person ; or, in other words, 
 whose servant or agent is the master, in case 
 the original owner may have assigned his inte- 
 rest in the vessel to another by way of mort- 
 gagC) to be considered, — the mortgagor's or the 
 mortgagee's ? And this brings us again to the 
 naked question, whetlier a mere mortgagee 
 shall be chargeable as om ner ? Jmoui the cases 
 we have been examining it woidd appear, that 
 the leaning of the Court, if we may so call it, 
 has always been in favour of a person thus situ- 
 ated. They seem to have been anxious to pre- 
 vent the iiardsiiip which a contrary doctrine 
 would throw upon a party, who, in taking a 
 security of this nature, and leaving the mort-
 
 CHAP. VII.] of a Ship J'ur Repairs, S^c. Ill 
 
 •^aj^or in the full possession and manap,ement of 
 the niorti?a<;('(l property, eonld have no i(le;i 
 that he was tlierehy renderinir himself liable to 
 the dehts of another. But in all the cases, ex- 
 cept in that of.Tackson v. Vernon* above quoted,'}" 
 there was some peculiar circumstance on which 
 the judgment of the Court seems to have been 
 founded ; — something' w hich excluded the pre- 
 sumption of any im])lied contract having existed 
 between the claimant and mortgagee ; and 
 which, therefore, exempted him from the liabi- 
 lities under which he might otherwise have been 
 placed. 
 
 If, indeed, the case of Jackson "v. Vernon is 
 now to l)e considered as law, we might safely 
 say, that a mortgagee, not having taken posses- 
 sion of a ship, could in no case be liable for 
 supplies, repairs, &c. That was certainly as 
 strong a case, seeking to charge a mortgagee, 
 merely as such, in the character of owner, as 
 could well occur. The plaintiff had supplied 
 the ship with cordage and stores, by the order 
 of the master alone ; and it did not appear that 
 
 * 1 Hen. Black. 114. It is to be observed, that this case 
 occurred after the 26 Geo. 3. c. 60, and before the 34 Geo. 3. 
 c. 68. 
 
 t Paccl04.
 
 1-28 Of the LiahUlty of aM<jrtgagce [chap. vh. 
 
 he had any knowledge whatsoever of any person 
 stand in j;- in the character of owner. In furnish- 
 ing these supplies, therefore, he had given cre- 
 dit, in the first case, to the master; and, in the 
 second, to the owner or owners of the ship, 
 Avhomsoever he or they might be. There was 
 notliinjz:, in short, in this case, to rebnt the pre- 
 sumj)ti()n of an inij)lied contract between the 
 plaintifl'and the mortgagee. I3»it the Conrt de- 
 cided the case npon the broad principle, that a 
 mortgagee out of possession was not answerable 
 for goods furnished for the nse of a ship ; — that 
 though the owners were bound by the contracts 
 of the master, he being their agent ; yet the 
 mortgagee was not such an owner till he had 
 taken possession. And, in the same case, Mr. 
 Justice Wilson says, " The only fpiestion is, 
 *' whether the conveyance to Vernon (the defen- 
 *' dant) were absolute, or only by way of secu- 
 *' rity :" and, having shewn that the efl'ect of tiie 
 conveyance was to pass an estate by way of mort- 
 gage, he afterwards remarked, tliat the owners 
 of the ship were liable for furniture and neces- 
 saries, because they receive the immediate bene- 
 fit of the freight ; and it was for that reason that 
 the contracts of the captain were l)iiHling upon 
 them, h(! Ix'ing their ag»'nt or ser\ant. But tliat 
 the cases which liad established this to be law 
 did not affect a mortgagee not in possession;
 
 CHAP. M I . j of a Ship J or JRcpair.s, S^c. 1 29 
 
 M'lio ronl(J not ho ronsidprrd as an owner, nor 
 as sncli ciititletl to tlu^ iVeiurlit. 
 
 Tlunc is no case, indeed, it is believed, where 
 the doctrine advanced by the Court in Jackson v. 
 Vernon, has been expressly over-ruled ; inas- 
 much as all the subsequent cases, as has been 
 already remarked, seem to have been deter- 
 mined upon their own peculiar circumstances. 
 After what has fallen, however, from the Judges, 
 in some of these cases ; and particularly from 
 Lord Kenyon, in that of Westerdell v. Dale,* it 
 is impossible to rely upon Jackson v. Vernon as 
 an authority by whi^h a question of this nature 
 would now be governed. The very circum- 
 stance, indeed, of the Judges having decided 
 all the cases that have lately come before them 
 upon their own grounds ; and not, as they might 
 have done, upon the broad and naked principle 
 of the non-liability of a mortgagee, who had not 
 taken possession ; cannot but lead us to imagine, 
 that they have continued to entertain great 
 doubts, at least, as to the validity of that prin- 
 ciple. 
 
 The result of the whole, therefore, seems to 
 be, that it is clear that a mortgagee of a ship. 
 
 7 Term Rep. 312. 
 K
 
 130 Liab'ilitii of a ]\Ioyli:<igtt', SsC. [chap. vii. 
 
 M'ho has not in any iiiaiiiu r iiitt rmcddbd with 
 the maiKincinont, hnt has ])ernuttr(l \\\v nioit- 
 i^aiior, eithrr under an express agreement or 
 otherwise, to continue in tlie entire control, 
 order, and disj)ositi()n oftlie vessel, Mill not he 
 held liable, either to the master tor \\a,ii:es or 
 disbursements, or to any other ])erson lor re- 
 pairs, stores, or other necessaries, dontMir sup- 
 plied by his order ; Avherever the master in the 
 one case, or the party n^akinii; the re])airs, or 
 supplying the necessaries, in the other, has 
 treated ^vith the mortgagor as the real owner of 
 the ship, and given him credit in that character. 
 But that, Avhere there has been no dealing with 
 the mortgagor as owner, but the credit must be 
 presumed to have been given to the ))erson or 
 persons, who may be found to be standing in 
 the character of owner or owners ; in all such 
 cases it must yet be considered doubtful, whe- 
 ther the liability would be considered as attach- 
 ing itself to the benelicial, or to the legal, ow n- 
 ership.
 
 \:n 
 
 cii.vr. viir. 
 
 Of the Manner in zcliicli the Mortgage of a Skip may he 
 best ejj'cclc.d. 
 
 It remiiins only to sii^^iicst a few observations, 
 as to the most eft'ertnal metliod of niortj^aginj^ 
 ships, so as to afford the mortgagee as full and 
 valid a security as the nature of the property, 
 under tlie present uncertainty of the law upon 
 this question, will admit. Indeed, upon this 
 point we shall have little more to do, than to 
 refer the reader to the learned judgment of the 
 present Master of the Rolls, in the case so often 
 before cited of Tliompson v. Smith.* 
 
 We have already seen, that the form of the 
 indorseriKint, directed by the last of the registry 
 acts to be made use of in every transfer of pro- 
 perty in a sliip, is adapted only to an absolute 
 sale, and cannot be resorted to, when the object 
 of the i)arties is to make a transfer by way of 
 mortgage only. And since the statute has not 
 provided for any deviation from this form, the 
 officers of the Custom-house will not permit any 
 
 1 ■\f.t(|.l. KH. 
 ..■ •)
 
 1 32 Of the Matuier of effect ing [chap, v i i i 
 
 entry to be niiule tluit is not in strict conformity 
 with it. Under these circnmstances, it has 
 usually been the practice, w here a transfer of a 
 ship has been intended to be made by way of 
 mortgage only, to make use of two instruments; 
 the first being an al)solute conveyance, which 
 is duly registered at the Custom-house, accord- 
 ing to the forms required by the statute ; — the 
 other, a deed of defeazance, of the existence 
 of which nothing is intended to appear upon the 
 register. Considerable difficulty, however, was 
 found to attend this mode of creating a mort- 
 gage, where it became necessary for the mort- 
 gagor to have recourse to his usual remedy for 
 enforcing his right of redemption against the 
 mortgagee. Under the registered deed, the 
 title to the ship was altogether vested in the 
 latter; and tliis title could only be affected by 
 setting up the unregistered deed in opposition 
 to it ; and thereby maintaining, that there might 
 be a good equitable title in a party, whose name 
 did not appear as owner of the ship upon the 
 certificate of registry. But, by tlie decision of 
 Lord Thurlow in llibbert r. Uolleston,* befi>re 
 cited, we have seen that his Lordship was of 
 opinion, even before the passing of the .*34 Geo. 3. 
 that no title could Ik- taken notice of, where 
 
 ' a Br. C. C. .>71 -. <n\n;y. 7.
 
 CHAP. VIII.] the Mortgage of a S/i ip. 1 33 
 
 tlir party <;laiininj; such title had not complied 
 witli the rejiulatioiis rc(juired hy the 2fj f ieo. .3. ; 
 and that the statute was e(jually bindinjjj in a 
 court of equity, as in a court of law : and the 
 subsequent statute has expressly declared, that 
 no contract or ag;reement for transfer of pro- 
 perty in any ship or vessel, shall be valid or 
 effectual for any purpose whatsoever, either in 
 law or e(juity, unless such contract or agree- 
 ment shall l)e made by l)ill of s^le, according to 
 the regulations prescribed by the former act.* 
 And, by the following section, all such con- 
 tracts and agreements are declared to be utterly 
 null and void, to all intents and purposes what- 
 soever. The defeazance, however, which was 
 taken by the mortgagee, not appearing, as we 
 have seen, upon the registry, not only seems to 
 fall within the doctrine of IIi!>bert v. Rolleston, 
 but is rendered a mere nullity by the last sta- 
 tute ; for it can only operate as an agreement 
 between the parties that the ship shall be re- 
 transferred to the mortgagor, upon his paying 
 the money intended to be secured. The Courts, 
 therefore, have considered it im])ossible to 
 take any notice of the unregist<M*ed deed ; and 
 the mortgagor has remained without any means 
 of recovering his property out of the hands of 
 
 * Sett. 11.
 
 1.'"I4 Of t lie Milliner of effecting [ciiai*. viii. 
 
 tlu' mort<;aii(M'. Trom tliis iiu'llrctiial method, 
 indeed, of attcmptiiij;- to creatr a niort.2:a2:e of 
 a slii|), tlie notion seems to have arisen, tliat no 
 \alid niorti;a,a:e of property of tliis nature can 
 he made, hut tliat every transfer of a sliip must 
 he hy Avay of ahsohite sale only; and that the 
 equity of redejiiption, therefore, is in fact taken 
 away hy the statute. 
 
 If, indeed, the form of indorsement directed 
 to he ma<h' use of hy this act, upon every alter- 
 ation of [)roperty in a ship, he imperative in all 
 cases, and cannot be made to mould itself so as 
 to meet, and carry into execution, the object of 
 the parties intendinj:; to effect such alteration, it 
 Avoidd seem to follow that this doctrine, however 
 inconvenient and subversive of tlie rij;lits of in- 
 dividuals the consequences of it would b(% must 
 be correct; and that it must be hft (o tlir legis- 
 lature alone to provide a remedy for the luiscliicf 
 its own acts have ]>r()duced. But it is lu^cessary 
 here to observe, that tlie present Master of the 
 I^olls seems to i)e of opinion, that the Aalidity 
 of a inort2ja;^e of a sliip does not in any manner 
 depend upon tlic po^^e^ of varyinc^ thr r()rni of 
 indorsement f^iven l)y the act, so as to rrnder it 
 suitable to a transfer l)y way of mort;;ai;e only. 
 Ill di'livcrini;' his jiiduiucnt in the ease of'I'homp-
 
 CHAP. \ III. j the Mortga<rc oj' a Ship. 1.3.j 
 
 son V. Smith, already noticed,* liis Honor thus 
 expresses liimself on this suhjoct : — " If" th(; fact 
 ♦* were estaldishcd, that the form of registry 
 •' prescribed by the acts were api)licahle only 
 *' to the case of an absolnte sale of a shi|), and 
 '* conld in no way be snited to a transfer by way 
 *' of mortgage, still it would not follow, as a 
 " consequence, than no other than an absolute 
 " sale was intended to be allowed ; but merely, 
 " that the provisions of the act should be deemed 
 " to apply only to an absolute sale, leaving all 
 '* other transfers of property untouched by the 
 " acts, and to be governed by the same rules 
 " and forms which prevailed before the acts 
 " were passed." That no other than an abso- 
 lute sale was intended to be allowed by the 
 legislature would certainly by no means appear 
 to follow as a necessary consequence from the 
 immutability of the form of indorsement ; for it 
 seems impossible to contend, that it was the 
 intention of the legislature, in this indirect man- 
 ner, to take away from the owners of ships the 
 power of transferring their property by way of 
 mortgage, or of depriving them of their equity 
 of redemption therein, in the case of any such 
 transfer having been made. But the real ques- 
 tion seems to be this, — whether these inconve- 
 
 * s 
 
 Sii])ra. -28.
 
 13(> Of the Manner of effecting [chap. viii. 
 
 niencies uill not necessarily follow from admit- 
 ting the im[)ossil)ility of varyin*;- the form of 
 indorsement, >vhere the objeet of the parties 
 eannot otherwise be carried into execution ; 
 ahhoujih transfers by \vay of mortji^a<i;e may not 
 have been in any manner in the contemplation 
 of the legislature. It is said, that the provisions 
 of the act should be deemed to apply only to an 
 absolute sale, leavino; all other transfers un- 
 touched by the acts ; and that such transfers are 
 to be governed by the same rules and forms eis 
 prevailed before the acts were passed; but 
 there seems to be very great difficulty in giving 
 this interpretation to the clauses of the act in 
 (piestion. It is true, that the form of the in- 
 dorsement recjuired by the last act to be made 
 upon every transfer, is applicable, as we have 
 seen, to an absolute sale only ; but the act itself 
 is general, and clearly comprehends every spe- 
 cies of transfer; and we have already seen, that 
 a mortgagee stands in the same* situation as a 
 purchaser, and will not be able to a\ail himself 
 of his security, unless he comply with all the 
 requisites of the acts. How, then, can it be 
 said, that the provisions of the acts api)ly only 
 to an absolute sale, or that all other transfers 
 are left untouched by them ? Indeed, in ano- 
 ther part of his judgment, his Honor admits, 
 tiiat the greatest inconvenience would arise, if
 
 cfiAP. > III.] I he Mortgage of a Ship. i.'J7 
 
 11h« ^imr<ls |)rovided by the register acts aii^ainst 
 l<)n'i;;ii(MS acciuirina^ an intncst in British ships 
 (lid not extend to the transfer of j)ro})erty by 
 way of niurt,i;a;;e, and that there was no founda- 
 tion for that supposition. Unless, therefore, the 
 form of the indorsement may be varied, and 
 rendered suitable to a transfer by way of mort- 
 gage, it would seem tluit tlie riiz:ht of mort2:ajr:ing 
 ships is, in fact, prohibited by the provisions of 
 the act. 
 
 It has ])een decided,* however, that there is 
 nothing so inflexible in this form, that it may not 
 be altered, even in the case of a purchase, where 
 such an alteration is necessary to effectuate the 
 intention of the parties ; and there seems to be 
 no pretence for holding, tliat this form may not 
 be so varied as to make it applicable to a mort- 
 gage. And, in this manner, it is contended, that 
 the object of tlie parties may be obtained. The 
 mortgage, therefore, should be made by bill of 
 sale, in the usual manner ; and the same in- 
 dorsement should contain a defeazance, or con- 
 dition of re-transfer, on payment of the principal 
 and interest intended to be secured. The certi- 
 ficate of the register of the ship should be accu- 
 rately recited in the bill of sale, agreeably to the 
 
 ' rinlcnvood -. . iMillrr. 1 '[";iiiiif . ;m7 ; :*itpr;i. Ufl. 
 L
 
 138 Of the Manner (f efface ting [chap. viii. 
 
 directions of tlic act; and tlir iiistnuiK'iit cou- 
 taininfj; such recital must l)e fully indorsed on 
 the certificate of registry, if the shij) he in the 
 same port to which she belonns ; but if the ship 
 be at sea, or absent from her own ])ort, a full 
 copy of such bill of sale must be transmitted to 
 the Custom-house. The form of the indorse- 
 ment, therefore, will not be inconsistent with 
 that directed to be used by the act, but will 
 merely contain the addition of the defeazance ; 
 which will shew the true nature of the contract, 
 should it become necessary for either of the par- 
 ties to give evidence of it. Should the officers 
 of the Custom-house persist in not taking any 
 notice of the defeazance contained in the bill of 
 sale, either in the entry thereof required by the 
 statute to be indorsed by them on the oath or 
 affidavit, upon which the original certificate of 
 registry of such ship or vessel was obtained, or 
 in the memorandum of the same to be made by 
 them in the book of registry ; but, adhering to 
 the form prescribed J)y the act, continue to 
 make an entry of the bill of sale, as if it had 
 been an absolute transfer of all the parties' inte- 
 rest in tlie Aessel, &c. the right of llie mort- 
 gagee cannot be afiected by such omissi()u. The 
 statutes invalidate the transfer only in tiie event 
 of some neglect of the regulations there pre- 
 scribed by the parties themselves ; and if these
 
 I N TK'ODl ( riON. XIX 
 
 I( is to l)o rcnmrkt'd, liouever, that in two 
 (li/lc'rcnt Ircitliscs lately fiivcn to tlic public on 
 the subject of niortua^cs, the old doctrine, that 
 a ship may be mortgaf;;ed in the same manner as 
 all other personal property, is stated as a ques- 
 tion that has scarcely ever been doubted ; or if 
 doubted, as being now more firmly established, 
 from the circumstance of such doubts having 
 been removed. The author of the first of these 
 treatises adheres to the language of all our for- 
 mer writers upon the same subject, and says 
 expressly, " A mortgage of a ship is like the 
 " mortgage of any other chattel, and subject to 
 " all the principles laid down in courts of law 
 " and equity relative to such mortgages."* And 
 after stating, that upon every transfer of inte- 
 rest, w hether legal or equitable, as well as upon 
 every contract relating to those interests, the 
 requisites of the registry acts must be observed, 
 the author goes on to remark, that the practice 
 which had sometimes obtained, of making mort- 
 gages of ships by two instruments, one an ab- 
 
 ' Patch (111 tlio Law ( t" Mortgages, ;M. 
 
 c 2
 
 XX INl'KODl criON. 
 
 soluU' conv^yaiict', aiul the utlur a ik'od of 
 deteazance, m as incorrect ; and then takes no- 
 tice of the above-cited case of Thom})son v. 
 Smith, not Nvith the^iew of pointing out to the 
 reader tliat any question liad ever been enter- 
 tained, or had arisen in argument upon that 
 case, as to the validity of a mortgage of this 
 nature ; but merely for the purpose of remark- 
 ing, that tlie error in the above-mentioned prac- 
 tice niiglit be easily avoided ; and that the man- 
 ner of making mortgages of ships, and the steps 
 necessaiy to be taken l)y the mortgagee to 
 effectuate his security, had been most clearly 
 laid down by the learned Judge then presiding 
 in the Vice-Chancellor's Court.* Such part of 
 his Honors judgment as refers to, or points out, 
 the proper mode of mortgaging a sliip, whether 
 in port or at sea, is then given at lengtli from 
 Mr. Maddock's report of the case, at the end of 
 ^^hi(■ll the reader will fuid tlie ])assage already 
 
 * The author says, " by the present Vice-Chancellor;" but 
 he case was decided by Sir Thomas I*liinur, the present Mast-. 
 
 t<i of llic F{..||^.
 
 reported to have said, " It is a mistakr to stip- 
 *' pose, that the ouiier of a sliip eannot make 
 " any transfer of that property, without partin;^^ 
 " entirely and inedeemaldy with all his inte- 
 *' rest."* And yet, in the report of a ease be- 
 fore the House of Lords, t the present Lord 
 Chancellor is stated to have said, " that no prc- 
 " perty in a ship can exist, except in the mode 
 " pointed out by the acts in question;" adding, 
 " that these acts say, that there shall be no 
 *' equitable interest as distinct from the legal ; 
 " and that he, the Lord Chancellor, had himsel 
 " been employed upon many petitions in bank 
 " ruptcy, in cases where ships were mortgaged 
 ** for sums far below their real value, and where 
 *' the assignees said, * IFe have the legal title, aiia 
 " the ships are absolutely ours :' and although the 
 '• mortgage might be only for £.3000, and the 
 " ship might be worth £ 15,000, the reason," his 
 Lordship added, " would be the same."J: 
 
 * Thompson r. Smith, 1 Madd. 39-3. 
 t Campbell v. Stein, 6 Dow, 116. 
 
 I If this were the real doctrine of the Court of Chancery, we 
 should be pursuing a mere shadow ; for the question intended 
 
 C
 
 A g-reat many otluT cases havo occmrrd, 
 wherein this doctrine has been either diiiMtly 
 or incidentally noticed, and wliieli, in the liir- 
 ther consideration of tliis subject, it ^vill be 
 necessary to lay before the reader; but those of 
 Thompson v. Smith, and Campbell v. Stein, 
 have been here alluded to, merely for the pur- 
 pose of illustrating the position laid do\vn 
 above ; viz. the existing doubts, and, conse- 
 quently, the present uncertainty of the law re- 
 specting a question, whicli must be considered 
 of the greatest importance, not only to the 
 professional man, but to every one engaged in 
 mercantile transactions. 
 
 to be agitated in those sheets would then be at rest. It is 
 probable, however, that the learned reporter has not, in tliis 
 instance, given us an accurate representation of what fell from 
 his Lordship on the occasion. The context certainly seems to 
 shew, that such was the bearing of his Lordship's mind upon 
 the subject; but we cannot help suspecting, that the proposi- 
 tions stated to have been made by him were weakened or mo- 
 dified by some qualifications, which do not appear in tlie report 
 of the case.
 
 NAMES 
 
 CASES CITED. 
 
 rage 
 
 A 
 
 Anderson, Camden r. 9» ^7, 
 
 Annett v. Carstairs 108 
 
 B 
 
 Barker r. Chapman 32 
 
 Blackburn, Cliinnory t . • • 104 
 
 Bragg, Hutton r. 120 «. 
 
 Brander, Young r. ••115, 123 
 Burn, Ex parte 57 
 
 Camden r. Anderson f),C7, 84;?. 
 Campion, Seville f. • • • • 121 «. 
 
 Carey v. White 102 n. 
 
 Came, Stokes r. 71 
 
 Carstairs, Annett r. 108 
 
 Ciiapman. Barker t'. • • • • 32 
 
 Page 
 Charnock, Moss t 15 
 
 Chinnery v. Blackburn • • 104 
 
 Chiistie i-. Lewis 121 n. 
 
 Coe, Rich r. 112n. 
 
 Crawford, Parish r. 120 
 
 Curtis V. Perry • • • • 37, 43, 52 
 
 D 
 
 Dale, Westenhll v ](5 
 
 Davis, Farnur v. 1 12 n. 
 
 Dixon t . Ewart 24 
 
 i: 
 
 Ewart, Dixon r 24 
 
 F 
 
 Farmer r. Davis 1 1 2 n. 
 
 Fairburn, Hay v. • .48, 54, 57 
 Flower r. Young J7 
 
 a
 
 NAMES or (ASKS CITKU, 
 
 P.>F<* 
 
 Frasor i . Hopkins 7 'J 
 
 Frascr v. Maibli 1 IJ), 1'24- 
 
 FriMich, Hobinboii X . •••• 08 
 Fugf, Smith r. 7J 
 
 G 
 
 Gillespie, Mestacr r. 8,20, 84;/. 
 
 GUnnif, Mair i\ 59 
 
 (iravcs, Newnham v. • • • • 31 
 
 H 
 
 Hart, Twontynian ; . ••••Ill 
 Hay v.Fairburn • • 48, 54, 5? 
 Hay, Moiikhousi' r. • • • • 49, 54 
 
 Heather, Wilson r. 100 
 
 Hibbort r. Rolleston 7, 67, 82 
 Hibbcrt, Rolleston r. •••• 5 
 
 Hopkins, Fraser r. 72 
 
 H()iii;htun, Ex parte 43,54, 59 
 Hubbard r. Johnstone • • • • 22 
 Hutton ». Rraijo 120 ;/. 
 
 Jackson v. Vernon* • 
 
 James x. Jones 
 
 Johnstone, Hubbard 
 Jones, James : 
 
 • 104 
 120 «. 
 
 120 //. 
 
 King c. King 
 
 99 
 
 L 
 
 Lewis, Christie i'. 
 
 M 
 
 121 u. 
 
 RI'Donnell, Robinson x. • • 45, 
 50, 54 
 
 • . 44, 59 
 
 • ' 120 //. 
 11.'), 124 
 
 • • . 121 //, 
 
 • •• 121 //. 
 
 Mair v. Glennie • • 
 Makenzie r. Roue 
 Mar^h, Fraser r. • 
 Meek, Tail- v. • • • 
 Mennell, ^'atis v. • 
 Mestaerv.Gilli'si)ie, 8, 20, S J.//. 
 
 Meyers, Reusse v. 78 
 
 Miller, Underwood i . - • • 88 
 Monkhouse v. Way • • • 40, 54 
 
 Moss r, Charnock .5 
 
 Moxon, Palmer ; . 23 
 
 N 
 Newnham x. Graves' 
 
 31 
 
 Palmer x . Moxon 23 
 
 Parish r. Crawford 120 
 
 Perry, Curtis r. • • • • 37, 43, 52 
 
 R 
 
 Raitson, Yates r. 121 //. 
 
 Rich X-. Coc 1 1 2 w. 
 
 Robinson x'. I'rinch 6h 
 
 Robinson x . M'Donnell • • 45, 
 50, J4 
 Rolleston X'. Hibl^ert • • • • 5 
 Rolleston, Hibbrrti-. 7, <>r, 82 
 Rowe, Makenziu ;. • • • • 120 ii. 
 Piowe, Trcwhella •..••117. 123 
 
 Scekness, Webster x, 
 Sevile r. Campion • 
 Smith X. Fuse • • • • 
 
 103;/. 
 121 //. 
 • • 75
 
 NAMKS OI" CASKS f I'lTI). 
 
 Sinilh, TliompsoM v. '2S, n3, 90 
 Stokis r. Came 71 
 
 T 
 
 TaU' V. Meek 121 ?». 
 
 Thompson v. Smith 28, 33, 5)0 
 
 Tinkler r. Walpolc 73 
 
 Trewhella v. Ilowc ••117, 123 
 Twi-ntyniiin v. Hart Ill 
 
 V 
 
 Valley r. Wheeler HO «. 
 
 Vernon, Jackson r. lO-t 
 
 llnderwood r. Miller •♦•• 88 
 
 Walpole, Tinkler v, 
 Webster t'.Seekness' 
 Westerdell v. Dale 
 Wheeler r. Valley • 
 White 1-. Carey • • - 
 Wilson V. Heather 
 
 • • I -J 
 
 1 03 //. 
 . . 1 0,> 
 1 20 //. 
 102 ;/, 
 ••10(i 
 
 Yallop, Ex parte 40, 43. .53, .')() 
 
 Yates V. Mennell IJ I n. 
 
 Yates I'. Uaitsi)on 12 i //. 
 
 Young I'. Brownlow- '115, 123 
 Young, Flower i'. J J
 
 1 Ni'i{<)i)r( rioN. wiii 
 
 slii|), the Iranicd ;nilli(»r seems In lia\<- roiisj- 
 (Icred ii MS estaldislitd, llial a in()rl;;a^e <d" jno- 
 jKM'ty oltliis nature, like thai of any otiier elial- 
 tel, inay take place, subject to the icstiict ions 
 laid down in conils of l;n\ and e(juity relati\('to 
 such' nioitj;aj;es. " Tlie main and fundamental 
 *' principle, " ho says, " as res})ects property in 
 " shijiping-, is this; — that there can he no valid 
 " mortp;af^e, ^vithout complyini;- ^^ith all the 
 '* forms of the registry acts. But if the forms 
 " are complied Avith, the mortiiaiic of a ship, 
 " whether at sea or in port, will be sustained as 
 " a valid security." In confirmation of this, it 
 is further remarked, that before the rec:istry 
 acts ships were constantly mortgaged ; and the 
 free transfer of property in shipping, as in other 
 snbjects of trade and commerce, encouraged ; 
 and that these acts were intended for the benefit 
 of commerce, and not meant to operate so as to 
 deprive the owners of their former right of rais- 
 ing monev bv mortiiage.* 
 
 * Holt's System of the Sliippinff and Navi-^ation Laws of 
 Great Britain, 1 vol. 30G.
 
 x\iv I \ii{()i)r( iioN. 
 
 That this was not the intention of these acts 
 can readily be admitted ; hut that we cannot 
 (•<nisi(hM- the validity of a mortgage of a ship as 
 completely established by the decision of 
 Tliomj)son r. Smith, ^vhatever may be due to the 
 V eight of this authority, sufficiently appears, as 
 ■well from ^vhat is stated to have fallen from the 
 Lord Chancellor in the above-noticed case of 
 Campbell r. Stein,* as from ^vIlat lias been ex- 
 pressed by his Lordship in some otluM' cases, 
 >vhich it M ill be our duty to examine in the fur- 
 ther part of this treatise. 
 
 * Dow's Rop. in Pailiaiiuiit, IIG.
 
 INTKOlJLt T10\. XXI 
 
 quoted, slatiiiL;" it to ]»c a mistake to siipj)ose 
 tliat tlie ou iier of a ship cuiinot make any trans- 
 fer oi' tliat property, without j)artin*^ entirely 
 and irredeemably with all his interest. The 
 question, therefore, as to the validity of the 
 mortgage in this case, or as to the effect of such 
 mortgages in a court of equity, is only inciden- 
 tally alluded to by the author, and has not fur- 
 ther attracted his attention. It will be neces- 
 sary, however, w hen we come to look into the 
 cases that have arisen upon this subject, as well 
 in courts of law as in equity, to examine the 
 case of Thompson v. Smith a little more fully ; 
 and we shall find, that although it cannot be 
 said that the question, whether a party can 
 maintain an equitable interest in a ship in the 
 character of a mortgagor, or w hether he be al- 
 together barred of his equity of redemption, 
 either by the express w ords, or the spirit, of the 
 registry acts, distinctly arose in that case, or 
 called for the determination of the Court ; yet, 
 the negative of this proposition, that is to sav, 
 that there can be no equitable interest remain- 
 ing ill tli( inortgiigec, ha\iiigbeen maintained in
 
 Wll I NT KO DICTION. 
 
 ar2:iiment by (lie counsel for tlir doft'iulant, (lie 
 IcMnicd .liuliic, in liiviiiL;' liis decision ii|)(»n llie 
 case, went very fully inlo this (|U('stion. 
 
 In tlie oUicrol" tlic publications above alluded 
 to, the case of Tlu)nipson v. Smith has been 
 more fully considered. After having remarked, 
 that a doubt was started in that case, ^vhetller, 
 since the registry acts, there could be a m\\'u\ 
 mortgage of a ship, or whether tlie right of re- 
 demption did not merely rest in honour between 
 the parties ; and after having stated the judgment 
 of tlie Vice-Chancellor, declaring, as wehaAc al- 
 ready seen, the validity of such a mortgage, the 
 autlior seems to consider thai no doubt could 
 any longer exist upon so important a <pies- 
 tion.* 
 
 In anollnr late publication, this case of 
 'J'homi)son v. Smith has also been \v\\ fully 
 taken notic(3 of; and, relying upon the case as 
 an aiitlioril} lor lh<' validity of a mortgage of a 
 
 ' Coolt oil MiJil-^agt's.
 
 CHAP. VIII.] the Mortgage uf a Sli'ip. 139 
 
 have been duly nttnidcd to, tlir transaction can- 
 not 1)e rendered void by tlie mistake or omis- 
 sions of tlie odieers of tl»e Custom-liouse. And, 
 should any dis])ute respecting the title to the 
 ship arise in a court of justice, the original bill 
 of sale itself may be resorted to as evidence, and 
 not merely an imperfect abstract made of them 
 at the Custom-house. 
 
 THE END. 
 
 J. Rogers, Prinler, 66, Rcd-Lion-Strect, Clerkeuwcll, Loudon.
 
 INDEX. 
 
 Administrator's title to a ship not affected by the resistry 
 
 acts, 47 et seq. (>5. 
 Assitiiiecs of a bankrupt — how far tliey may be said to derive 
 
 their title by operation of law, Q'l. 
 
 B 
 
 Bargain and sale, upon the execution of, the bar2;ainee has an 
 immediate seizin, subject to be defeated, in case the enrol- 
 ment is not made in due time, 22 n. 
 Bankruptcy, creditors in, how affected by the registry acts, 37. 
 Bankrupt, assignees of", liow far they may be said to derive 
 
 their title by operation of law, 62. 
 Bill of sale of a ship sufficient to pass the legal estate, subject 
 to be rendered void by non-compliance with the 
 forms prescribed by the registry acts, 24 tt seq. 
 not sufficient to pass the property, though all the 
 forms of the acts have been complied with, if the 
 vessel continue under the order and disposition 
 of the original owner up to the time of his bank- 
 ruptcy, 44, 46. 
 
 Charter-party transfers the liability of the original owner to the 
 
 charterer /;;o Aac t/te, 119, 120 «. 
 Creditors in bankruptcy, how affected by the registry acts, 37. 
 Custom-house officers will not permit any entry to be made in 
 
 the registry, that is not in strict conformity with the form of 
 
 indorsement prescribed by the act, 131. 
 
 M
 
 11-2 INDEX. 
 
 Ji;(|iiity of redemption, whether there be any in a ship, qiutre, 
 
 :K),'34. 
 Il»[uituble title to a ship not an insurable interest, 10. 
 
 said to be entirely taken j^way by the registry 
 
 acts, 27. 
 tlie contrary doctrine niaiiitainod, 34, 51. 
 Evidence aft'orded by the register ol the interest which parties 
 
 may have in a ship, C(j ct scq. 
 Executors' title to a ship not affected by the registry acts, 
 47 ct seq. Go. 
 
 forms ri ipiiri'd by the registry acts cannot be dispensed with 
 on equitable grounds, 33. 
 
 Grand bill of sale, in what manner distinguished from others, 
 5 «. 
 
 Indorsement, form of, rocjuired by the registry acts, incompa- 
 tible, with a mortgage, qiucrc, y."i. 
 as given by the act, only applicable to 
 
 an absolute sale, 8G. 
 need not be made use of in all cases, H8. 
 Insurance, equitable title to a ship cannot be nuide the subject 
 of, 10. 
 in an action upon a policy of, a court of law al- 
 ways takes takes notice of the doctrine of trusts, 
 10. 
 
 U 
 
 Master of a ship, an action can)iot be maintained against for 
 repairs, iVc. if, by the; terms t)f tlie con- 
 tract, the credit is confined to the owners, 
 112 «. 
 cannot maintain an action agiiinst a mort- 
 gagee who has not taken possession, unless 
 by privity of contract, 107 ct scq.
 
 INDEX. M.'i 
 
 Morliia;;o of a sliip, doiihts as to its validity, iiitr. xvi. 80. 
 
 in i;\li!it manner best eHcctcd, 1:}1. 
 Mortgagee of a ship, liahiiities of, for the repairs or su|)pli(s 
 for the use of tlie vessel, 101. 
 taking possession of the vessel, holds himself out to 
 the world as owner, and therefore subject to all 
 liatdlilies, 103. 
 
 o 
 
 Oath required by the 2Gth Geo. 3. c. 69, never taken, exoej>t 
 when the re^^ister is tirst granted, or when a new register is 
 eiven, 4 ii. 
 Objects of the registry acts, 97. 
 
 Owner of a vessel bound to perform the contracts made by the 
 master, 102. 
 but only if fit and reasonable, 102 n. 
 an action cannot be maintained against, ex- 
 cept u])on the ground of contract, 112. 
 his liability transferred by charter-party pro 
 hac lice, 119 /i. 120. 
 Ownership in a vessel sufficiently established without resorting 
 to the register, but subject to be overturned by the docu- 
 mentary proofs afforded by the bill of sale and register, 70. 
 
 Parol evidence sufficient in an action on a policy of insurance, 
 
 to prove the property of the ship in the plaintitF, 72, 7-3. 
 Policy of the registry ads, 8, 60, 91 et seq. 
 
 of insurance, in an action upon, a court of law always 
 takes notice of the doctrine of trusts, 10, 67. 
 
 R 
 
 Register, evidence afforded by, of the interest which parties 
 may have in a ship, 66 ct seq. 
 
 practice of receiving it as evidence, in what cases 
 over-ruled, 71, 7o. 
 
 not prima facie evidence, unless it shew that the re- 
 gistry was made by the authority of the person to 
 be charged, 72. 
 
 cainot be evidence for a party claiming, 77.
 
 144 INDEX. 
 
 Registered owners not liable,* as such, fur stores supplied for 
 
 the use of the ship, WD, 123. 
 Registry acts, policy of, »,(>(>, 1)1 vt scq. 
 
 tlieir effect upon creditors in hankruptcy, 37. 
 the Stat. '21 Jac. 1. not repealed by, 4(;, oO, «(.). 
 do not aftect titles passing by operation of law, 
 47. 
 
 Ship. uiort?,"age of, doul)ts as to its validity, intr. xvi. 80. 
 
 transfiT of at sea invalid, if no recital in the bill of sale 
 
 of the certificate of registry, .5. 
 equital)le title not an insural)le interest, 10. 
 property in, passes instantly by the bill of sale ; defeasi- 
 
 Ide by subse([»ient omissions, "I'l et se(j. 
 bill of sale sufficient to pass the legal estate, subject to 
 be rendered void by non-compliance with the forms of 
 - the registry acts, 24 et scq. 
 no eipiitable title to, 27. 
 an interest may exist in a party whose name does not 
 
 appear upon the register, (ji. 
 owner of, bound to perform the contracts made by the 
 master, 102. 
 Statutes, 7 cV 8 Will. 3. cap. 22. 2. 
 21 Jac. 1. cap. 19. 37. 
 2G Geo. 3. cap. 60. 3. 
 34 Geo. 3. cap. 68. 11. 
 
 T 
 
 Titles, passing by operation of law, not atbcted by the regis- 
 trj'^ acts, 47 ct scq. 65. 
 distinction between, arising from the acts of parties, or 
 merely by the operation of law, or the act of God, 52. 
 Trusts arising by implication of law, distinguished from that 
 species of trust which exists between a mortna<;()r and mort- 
 gagee, 0.3 ct scq. 
 
 IINIS. 
 
 J. Rogers, Printer, 66, Rcd-Lion-Slreel, Clcrkeiiwcll, l^ndon.
 
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