tame

es require the officers to make a regis to grant a new certificate, in five cases: e old certificate has been lost or mis

where the certificate is wilfully deaster (m); Thirdly, where, after a transfer of part of the property in the same port, the owners of the part not transferred desire a new registry (n); Fourthly, where the ship is altered in form or burthen (0); and, Fifthly, upon any transfer of property to another port (p). The statute of King William also required a new register in case of a change of the ship's name (p), but this change is now altogether prohibited (q). In cases not allowed by the statutes a new register ought not to be granted; and, there- [ 57 ] fore, where the commissioners of the customs re

(1) 26 Geo. 3. c. 60. s. 22.

(m) 28 Geo. 3. c. 34. s. 14.;

34 Geo. 3. c. 68. s. 19.

(n) 34 Geo. 3. c. 68. 8. 21. (a) 26 Geo. 3. c. 60. s. 24.

(p) 7 & 8 Will. 3. c. 22. s. 21. (7) 26 Geo. 3. c. 60. s. 19. The stat. 34 Geo. 3. c. 68. s. 22. appears to provide for another case. before p. 53.

See

ly applied to the sea letter, prescribed by our treaties with foreign powers, co nomine, although in our act of 1st June, 1796. ch. 45. 3 U. S. L. 356. it is denominated a passport. And a question has arisen upon a policy of insurance, where a ship sailed with a certificate of ownership, and the policy contained a warranty that the ship sailed with a sea letter, whether such certificate was a compliance with the warranty. The Supreme Court of New York held that it was not, because a sea letter was a document known and prescribed by treaties with the U. S., and no parole evidence could be admitted to shew that in common parlance, it was understood to be a certificate of ownership. This decision however was reversed by the Court of Errors. Sleght, &c. v. Hartshorne and Rhinelander, &c. 1 John. Rep. 192. 2 John. Rep. 531.

fused to order a new one to be made, upon the application of certain insurers, to whom a major part in value of a ship had been assigned upon abandonment thereof to them, the owner of the remaining part, who was not the master, having obtained possession of the certificate and refused to produce it, or allow an indorsement of the transfer to be made upon it; the Court of King's Bench held the refusal of the Commissioners to be just (r).

25. A bill of sale from the original builder to the first purchasers of a new ship, need not contain a recital of a certificate of registry (s), nor can properly do so, because regularly the ship is not to be registered until it comes to their hands, although they must cause it to be registered before the commencement of a voyage.

Upon the legislative provisions relating to subsequent transfers of the property, the following cases have been decided.

It was decided not long after the passing of the statute of the twenty-sixth year of the present reign, that a bill of sale, absolute upon the face of it, although in

reality intended only as a security for the pay[58] ment of a promissory note, made while the ship

was at sea, and not containing a recital of the certificate, was for that reason absolutely void; and that, although the grand bill of sale was delivered at the time of the transaction, and the person to whom the transfer was made, took possession of the ship, as soon as she returned to this country, yet the assignees under a commission of bankrupt, which had issued in the

(r) The King v. The Commissioners of the Customs, upon an application for a mandamus to them to order a register de novo, Mich. T.

P

42 Geo. 3.

(8) Oxenham v. Gibbs & another, in B. R. Trin. Term 1807.

meantime against the original owner, were entitled to the ship, and the vendee had not even a lien upon it, either legal or equitable, to secure the payment of the note (t). The contents of the certificate might have been learnt at the Custom House.

26. But where a bill of sale of a prize ship was made while the ship and the certificate of registry were at sea; and in the recital of the certificate in the bill of sale, the sentence of condemnation was said to be dated on the 28th day of May 1783, and the certificate of freedom granted on the 23d day of January 1783, which agreed with an abstract of the register in one of the offices at the Custom House, from which the recital was taken, but differed from the certificate itself, and from the abstract of it in three other offices at the Custom House, in all of which the sentence of condemnation was said to be dated, as in truth it was, on [59] the 28th day of May 1782: the Court held, that this misrecital thus occasioned did not vitiate the bill of sale, the mistake being evident from a comparison of the dates; it being impossible that the ship should have been made free before condemnation. And Lord Kenyon added, "even supposing the parties had had an "opportunity of seeing the original certificate, it is too "much to say, that a mere clerical mistake should ren"der it null and void (v).”

27. On the other hand, where in the recital of a certificate the word "oath" was used instead of "affirma"tion," "sworn" instead of "affirmed," the allegation that another part-owner was not resident within

(t) Rolleston & others v. Hibbert & others, Mich. T. 30 Geo. 3. 3 Ter. Rep. in K. B. 406. and Hibbert & others v. Rollest in & others, 3 Bro.

Ch. Ca. 571.

(v) Rolleston & others v. Smith, 4 Ter. Rep. in K. B. 161.

that an indorsement on the certificate cannot be imme-
diately made (a). In the latter case, the indorsement
must be made, and a copy thereof delivered to the offi-
cers within ten days after the ship's return to the port
to which she belongs; and although on some of
the ten days, and even on the last of them, being [61]
holidays, no business be done at the Custom
House, still, if the limited time be suffered to expire,
the property will not pass, notwithstanding the indorse-
ment be made, and the copy delivered on the next day
of business (b). In the cases, in which no time is fixed
by the Legislature, the property will not vest in the
vendee under a bill of sale, until the requisites of the
statutes are complied with: and if, between the execu-
tion of the bill of sale and such compliance, the interest
of a third person takes effect, as in the case of the
bankruptcy of the vendor, the transfer will be wholly
void. And, therefore, in a case where one Kirkpatrick
executed to Charnock a regular bill of sale of two-third
parts of the vessel then at sea, and became bankrupt be-
fore Charnock delivered a copy thereof to the officers of
the customs at the ship's port of registry, although this
was done soon after the bankruptcy, and a regular in-
dorsement made on the certificate, and notice thereof
duly given within ten days after the ship's return, the
assignees recovered the bankrupt's share from Charnock,
who had obtained possession of the ship. In this case
it was contended, on the behalf of Charnock, that a rea-
sonable time for complying with the requisites ought to

(a) 34 Geo. 3. c. 68. s. 16, ante, page 49.

(b) Gillespey & others v. Mestaer, Guildhall Sit. after T. T. 1804. before Lord Ellenborough, Ch. Justice.

For a further account of this cause,
and other points connected with it,
See Sections 32. & 33. of this
chapter.