(d.) (c) If the transmission is consequent on death, the declaration of transmission shall be accompanied by the instrument of representation (d), or an official extract therefrom. (2.) The registrar, on receipt of the declaration of transmission so accompanied (c), shall enter in the register book (e) the name (d) of the person entitled under the transmission as owner of the ship (d) or share the property in which has been transmitted, and, where there is more than one person, shall enter the names of all those persons, but those persons, however numerous, shall, for the purpose of the provision of this Act with respect to the number of persons entitled to be registered as owners (e), be considered as one person. sale on 28.—(1.) Where the property (ƒ) in a registered (g) ship Order for or share therein is transmitted on marriage, death, bank- transmisruptcy, or otherwise (h) to a person not qualified to own sion to a British ship (i), then unqualified per if the ship is registered in England or Ireland, the High son. Court (k); or 1854, ss. 62, 64. if the ship is registered in Scotland, the Court of Session; 24 & 25 or Vict. c. 10, s. 12. Vict. c. if the ship is registered in any British possession (1), the 30 & 31 court having the principal jurisdiction in that posses- 114, s. 35. sion; or if the ship is registered in a port of registry established by Order in Council under this Act (m), the British court having the principal civil jurisdiction there; may on application by or on behalf of the unqualified. person (i), order a sale (n) of the property (f) so transmitted, (c) See note (d), p. 25. (d) Defined, § 742. (e) § 5. (f) This appears to include the interest of a mortgagee transmitted under § 37; cf. § 25 (b.). (g) See note (q) to § 24. (h) § 27, s. 1, and notes. (i) § 1. (k) Int. Act, 1889, § 13, s. 3. The Rules of the Supreme Court (Merchant Shipping), 1894, exclude this from the matters assigned to the Probate, (1) Int. Act, 1889, § 18, s. 2. (n) The court has power to order Transfer sale by order of court. and direct that the proceeds of the sale, after deducting the expenses thereof, be paid to the person entitled under such transmission or otherwise as the court direct (). (2.) The court may require any evidence in support of the application they think requisite, and may make the order on any terms and conditions they think just, or may refuse to make the order, and generally may act in the case as the justice of the case requires. (3.) Every such application for sale must be made within four weeks after the occurrence of the event (p) on which the transmission has taken place, or within such further time (not exceeding in the whole one year from the date of the occurrence) as the court allow (q). (4.) If such an application is not made within the time aforesaid, or if the court refuse an order for sale, the ship (r) or share transmitted shall thereupon be subject to forfeiture under this Act (s). 29. Where any court (r), whether under the preceding of ship or sections of this Act (t) or otherwise (u), order the sale of any ship or share therein, the order of the court shall 1854, s. 63. contain a declaration vesting in some person named by the court the right to transfer that ship or share, and that person shall thereupon be entitled to transfer the ship or share in the same manner and to the same extent as if he were the registered owner thereof (x); and every registrar shall obey the requisition of the person so named in respect of any such transfer to the same extent as if such person were the registered owner (y). Power of 30. Each of the following courts, namely:— court to prohibit (0) This enables the court to transfer. recognize beneficial interests not 1854, s. 65. transmitted, and pay their owners; see discussion per Lord Hatherley, in Liverpool Bank v. Turner (1860), 1 J. & H. 159, before the Act of 1862. (p) Marriage, death, bankruptcy, &c., § 27. (q) See note (n), p. 27. (r) Defined, § 742. (s) Procedure for forfeiture, § 76. In The Millicent, W. N., August 8, 1891, p. 162, a lady who had pur chased one sixty-fourth share of a British steamer, married a Swede, and died. There being no application for sale, the Crown obtained forfeiture. A bona fide purchaser for value after forfeiture will be affected by it. The Annandale (1877), 2 P. D. 218. (t) § 28. (u) Cf. § 76, and general powers of Admiralty Court o er ship arrested. (x) § 56. (y) Cf. §§ 26, 39. (a.) in England or Ireland the High Court (z); (b.) in Scotland the Court of Session; (c.) in any British possession (a) the court having the may, if the court think fit (without prejudice to the Mortgages (f). Mortgages. 31.—(1.) A registered ship (g) or a share therein may be Mortgage (z) Sce note (k), p. 27. (e) May, under Rules of the Supreme Court (Merchant Shipping), 1894, rule 2 (see Appendix), be made "by summons or otherwise, and either ex parte or upon service of notice on any person as the court may direct." V. (d) Such orders made by the Admiralty Division in Nicholas Dracachis (1875), 1 P. D. 72, and The Horlock (1877), 2 P. D. at p. 250; by the Court of Chancery in Armstrong v. Armstrong, cited in Coombes v. Mansfield, 3 Drew., at p. 201. This section does not interfere with the general jurisdiction of the court to protect property during litigation. Orr v. Dickinson (1859), Johnson, 1. (e) In The Isis (1868), 3 Asp. M.C. O. S. 52, on an application by a purchaser in default with instalments, an order was made on his bringing arrears into court. of ship or share. (f) A mortgage of a ship effects a transfer of all the mortgagor's interest 1854, ss. in the thing mortgaged, not abso- 66, 67. lutely, but by way of security (§ 34), and it is therefore subject to redemption. A second mortgagee will obtain the mortgagor's equity of redemption, and, though he cannot take possession against a first mortgagee, he can against all other persons not having equities prior in date to his own estate or charge, and can enforce such right by obtaining the appointment of a receiver. Per Lindley, J., in Keith v. Burrows (1876), 1 C. P. D. at p. 736; and Liverpool Marine Co. v. Wilson (1872), L. R. 7 Ch. at p. 511. The court will, between the partics, go behind a transaction appearing on the register to be an absolute transfer, and, if it is a mortgage, will treat it as such. Cf. The Innisfallen (1866), L. R. 1 A. & E. at p. 76; Ward v. Beck (1863), 13 C. B. N. S. 668; and Gardner v. Cazenove (1856), 1 H. & made a security for a loan or other valuable consideration, and the instrument creating the security (in this Act called a mortgage (h)) shall be in the form (i) marked B in the first part of the First Schedule to this Act, or as near thereto as circumstances permit, and on the production (k) of such instrument the registrar of the ship's port of registry (1) shall record it in the register book (m). (2.) Mortgages shall be recorded by the registrar in the order in time in which they are produced to him for that purpose, and the registrar shall by memorandum under N. at p. 438. This follows from the general principles of courts of equity, and from the express recognition of bencficial interests in § 57 of the Act. So also the court will, between the parties, go behind a registered mortgage in the statutory form to see what were the real terms of the mortgage. The Cathcart (1867), L. R. 1 A. & E. 314. But in the absence of evidence to the contrary, a statutory mortgage on the register is an ordinary mortgage, with the ordinary common law incidents, except in so far as varied by the provisions of the Act. Under the Act of 1854 it was held that the courts could not recognize unregistered mortgages not in the statutory form. Liverpool Bank v. Turner (1860), 2 De G. F. & J. 502. This was remedied by § 3 of the Act of 1862 (Act, § 57; cf. note to § 24), and an unregistered mortgage will be enforced against all persons except registered transferees or mortgagees. Per Lindley, J., in Keith v. Burrows (1876), 1 C. P. D. at p. 732; Stapleton v. Haymen (1864), 2 H. & C. 918; Black v. Williams (1895), 1 Ch. 408. Under a mortgage of a ship there pass-(1.) Freight not yet payable at the time when the mortgagee takes possession (Brown v. Tanner, L. R. 3 Ch. 597), or not then paid (per Lord Cairns, in Keith v. Burrows (1877), 2 App. C. at p. 646). Until the mortgagee takes possession he has no claim on the freight, even after notice to the person liable. Keith v. Burrows, 1 C. P. D. p. 745. After possession he takes priority of a mortgagee of freight only. The Merchant Shipping Act does not deal with charges on freight or their priorities, or the rights of the mortgagee with regard to freight, which are governed by ordinary principles. See Liverpool Marine Co. v. Wilson (1872), L. R. 7 Ch. 511; and Scrutton on Charters, § 147, s. 7. (2.) Cargo does not pass unless expressly assigned. Langton Horton (1842), 5 Beav. 9. V. (3.) Appurtenances on board at the date of the mortgage, or put on board after such date, in substitution for similar articles on board at such date. Coltman v. Chamberlain (1890), 25 Q. B. D. 328. "The High Court of Admiralty has jurisdiction over any claim in respect of any mortgage duly registered, whether the ship or the proceeds thereof be under arrest of the said court or not" (24 Vict. c. 10, s. 11). (g) See note (q) to § 24. () May be altered by the Commissioners of Customs with the conscut of the Board of Trade; § 65, s. 1. Penalty for forging, &c., § 66. (k) There is not, as there is in § 26 as to bills of sale, an obligation to produce it to the registrar, whether registration is desired or not. Sco per Lindley, J., in Keith v. Burrows (1876), 1 C. P. D. at p. 732. (1) § 13. (m) § 5. his hand notify on each mortgage that it has been recorded by him, stating the day and hour of that record (n). 1854, s. 68. 32. Where a registered mortgage is discharged, the Entry of discharge registrar shall, on the production of the mortgage deed, of mort with a receipt for the mortgage money endorsed (o) there- gage. on (p), duly signed and attested (7), make an entry in the register book to the effect that the mortgage has been discharged (r), and on that entry being made the estate (if any) which passed to the mortgagee shall vest in the person in whom (having regard to intervening acts and circumstances, if any,) it would have vested if the mortgage had not been made (s). mort 33. If there are more mortgages than one registered in Priority of respect of the same ship or share, the mortgagees shall, gages. notwithstanding any express, implied, or constructive 1854, s. 69. notice, be entitled in priority, one over the other, according to the date at which each mortgage is recorded in the register book (t), and not according to the date of each mortgage itself (u). (n) Priority depends on date of record; see § 33. (0) Forgery, &c., §§ 66, 67. (p) Power to dispense with evidence, § 67. (7) § 694. As to stamp duty, see § 721. (r) The registrar has no power to erase the entry of a mortgage. Cf. Chasteauneuf v. Capeyron (1882), 7 App. C. at p. 135, "It would be a violation of the principle of the registration Acts to erase any entries which appear on the face of the register." When a discharge has been duly registered, the mortgage is at an end, and cannot be revived by an entry that the discharge has been made in error, or as against a new mortgagee on the register, by a subsequent unregistered assignment, whatever may be the equities between mortgagor and mortgagee. Bell v. Blyth (1868), L. R. 4 Ch. 136. But where the discharge of a mortgage had been entered on the register by mistake, the Court of Admiralty, apparently acting under what is now § 57 of this Act, declared a pur chaser from the mortgagee the owner, (s) This would not be the trans- (t) § 31, s. 2. The only exception is that mortgages effected under a certificate of mortgage date from the date of the entry of such certificate in the register; § 43. (u) This clause prevents the |