⚫ vessel is in any foreign port, and the master of such ship or ves*sel is privy to such transfer, or in case he is not so privy, as soon ' as he shall become acquainted therewith, such ship or vessel, af❝ter having delivered the cargo then on board, such ship or vessel, at the port or ports for which it is destined, shall sail from such 'port or ports to the port of his Majesty's dominions to which she belongs, or to any other such port in which she may be legally registered by virtue of the said act, and may take on board at the <port or ports for which her original cargo was so destined, or at any other port being in the course of her voyage to the port of 'his Majesty's dominions in which she may be so registered de novo, such cargo, and no other, as shall be destined, and may be legally carried, to such port of his Majesty's dominions, where 'she may be so registered de novo: and if such transfer of pro'perty shall be made while such ship or vessel is on a fishing voyage, and the master of such ship or vessel is privy to such * transfer, or in case he is not so privy, as soon as he shall become 'acquainted therewith, such ship or vessel, after having finished 'such fishing voyage, without touching at any foreign port or ports, except for the purpose of repairs or refreshments, or for 'delivering any part of the cargo she may have on board, destined ' for such foreign port or ports, shall sail to the port of his Majes'ty's dominions to which she belongs, or to any other such port where she may be legally registered by virtue of the said act, and may take on board at the foreign port or ports last described, or at any other port or ports being in the course of her voyage to the port of his Majesty's dominions where she may be so registered de novo, such cargo, and no other, as shall be destined, and 'may be legally carried, to such port of his Majesty's dominions; and every such ship or vessel, as aforesaid, shall be registered de novo as soon as she returns to the port of his Majesty's dominions 'to which she belongs, or to any other such port în which she may 'be legally registered by virtue of the said act: on failure whereof, 'such ship or vessel shall, to all intents and purposes, be from thenceforth considered, and deemed, and taken to be a foreign ship or vessel, and shall not again be registered and be entitled to the privileges of a British ship or vessel, unless upon special representation of the circumstances of the case, to four or more of "the commissioners of his Majesty's customs in England, or to 'three or more of the commissioners of his Majesty's customs in Scotland, or to the governor, lieutenant-governor, or commander

N

in chief, for the time being, of the islands of Guernsey or Jersey, or of any colony, plantation, island, or territory, to his Majesty belonging, as the case may be, the said commissioners, governor, lieutenant-governor, or commander-in-chief, shall respectively, on ⚫ consideration of the special circumstances of the case, think fit to order; and, in such case, they are hereby authorised to order, that the said ship or vessel shall be registered, and be thereby again entitled to the privileges of a British ship or vessel, and such registry shall be made, and such certificate thereof shall be granted accordingly.'

261. Upon this clause of the 34 Geo. III. c. 68. an eminent writer has made the following observations: That part of the • statute of the twenty-sixth year of the present reign (Geo. III.) which provides for the surrender of the certificate in the case of transfer to a foreigner, has been already noticed, (26 Geo. III. c. 60. § 15. supra cit.) I have not found any statute which re•quires a new register, after a transfer of property wholly or in part to a foreigner. Doubtless, if a ship transferred to a foreigner should be re-transferred to a subject, so as to become entitled to claim again the privileges of a British ship, a new register would be necessary to revive the privileges; yet this does not appear to satisfy the words used in a section of a late statute, (34 • Geo. III. c. 68 § 22.) which, if I rightly understand it, requires a ship to proceed to some port, in order to be registered anew. The clause is very obscure; and as I am not satisfied that I per< fectly comprehend its meaning, I shall refer the reader to the appendix, in which it will be found at length, that I may not mislead his judgment by abridging it,' (Abbott, 50.)

Such are the mutual relations of British subjects and of alien friends, with regard to their power of buying and selling move

ables.

262. (2.) With regard to alien enemies, the general rule is quite established, that it is illegal in a British subject to trade with an enemy, and consequently that any contract of sale entered into in the course of such trading, is void, and cannot be enforced in our courts. In the English case of Potts v. Bell, which was decided by the Court of King's Bench upon a writ of error brought from the Court of Common Pleas, this subject was very fully considered; and after hearing two arguments at the bar, Lord Kenyon, in delivering the opinion of the court, said, That the court had very fully considered the question after the

very learned argument which had been made by the king's advocate in the last term. That the reasons which he had urged, and the authorities which he had cited, were so many, so uniform, and so conclusive, to shew that a British subject's trading with an enemy was illegal, that the question might be considered as finally at rest: That those authorities, it was true, were mostly drawn from the decisions of the Admiralty Courts; and that after all the diligence which had been used, there was only one di❝rect authority on the subject to be found in the common law books, and that one was to the same effect: But that the circumstance of there being that single case only, was strong to 'show that the point had not been since disputed, and that it * might now be taken for granted that it was a principle of the 'common law that trading with an enemy without the king's license, was illegal in British subjects: That it was therefore needless in this case to delay giving judgment for the sake of pronouncing the opinion of the court in more formal terms, more ' especially as they could do little more than recapitulate the judg'ment with the long train of authorities already to be found in the clearest terms in the printed report of the case of the Hoop "published by Dr. Robinson: (1 Rob. A. R. 196.): that the consequence was that the judgment of the Court of Common Pleas must be reversed.' Potts v. Bell, 8. T. R. 548.

The same rule received effect in the following case in Scotland. A French privateer having captured a ship, of which the defender Hutton was master, he was detained a prisoner along with his crew on board the privatcer. The privateer afterwards captured another ship. which had been abandoned by her crew, and which belonged to the pursuer, Palmer. The French captain at first determined to sink his prize; but he afterwards sold her to the defender Hutton, who, leaving one of his crew as a hostage in security of the price, returned home himself with the rest of them in the vessel. Palmer, on hearing of this, claimed the vessel as his property, and brought an action against Hutton to recover her. The • Lords found that the property of the ship in dispute was not transferred to the defender by the sale made to him, and that the pursuer is still entitled to reclaim or recover the said ship; but found that the defender is entitled to a recompence for his bringing the ship within the pursuer's power to reclaim it, &c. Palmer v. Hutton, 3d Feb. 1784.

263. But although it be thus unlawful for a British subject, upon his own authority, to trade with an enemy, yet, as is stated in the case of the Hoop already mentioned, the king may, by his license, permit his own subjects to trade with the enemy, and may also permit an enemy to trade with his subjects.

264. A trade of this kind was carried on to a very great extent by the subjects of Great Britain, during the wars which followed the French Revolution; and although it was at first held by courts of law, that licenses to trade with the enemy ought to be strictly construed, yet, at a subsequent period, when a great part of the foreign commerce of the nation came to be carried on in this way, and could not be carried on in any other way, in consequence of the situation to which the continent of Europe was reduced by the success of the French arms, and by the commercial policy adopted by the French government, the license trade became a favoured object, and the courts of law adopted the maxim, that licenses should be liberally construed *.

consequence

265. In of the extent to which this trade was carried, a number of cases occurred in England, both in the Courts of Common Law, and in the Court of Admiralty, in which questions of great interest and difficulty were decided, relative to the nature of trading licenses, and the extent of the privilege which they conferred on those who obtained them. It would lead me too far, however, from the proper object of this work, were I to enter upon this subject, or to state the cases which have been decided. I shall merely, therefore, refer those who wish to investigate this branch of the law, to the following cases and authorities, in which, and in the cases which have already been stated, the nature of this species of trade, and the views by which the English courts were guided in their determinations upon the subject, are fully explained, Case of the Cosmopolite, 4 Rob. A. R. 8; Morgan v. Oswald, 3 Taunt. 554; Fayle v. Bourdillon, ibid. 546; Flindt v. Scott, 5 Taunt. 674; Fenton v. Pearson, 15 East, 419; Minett v. Bonham, ibid. 477; Usparicha v. Noble, 13 East, 332; Robinson v. Touray, 1 M. and S. 217; Hullman v. Whitmore, 3 M. and S. 337; Long on Sale, p. 93, et seqq.

266. VI. The next class of persons to be considered, are Tutors, in regard to their power of selling the property of their ward.

See case of the Cosmopolite, 4 Rob. A. R. 8, and judgment delivered by Chief Baron Thomson, in Flindt v. Scot, 5 Tuunt. 696.

267. Upon this matter a distinction is made between heritage and moveables.

6

268. (I.) As to moveable property, it is observed by Erskine, that frequent instances occur in our practice of tutors and cura'tors disposing of the most valuable and durable moveables belonging to the minor, by their own authority; and such sales, if 'called in question, would probably be declared valid, though sub'ject to reduction at the suit of the minor on the head of lesion." Ersk. 1. 7. 17.

This

269. (2.) With regard to heritage, it is observed by the same author, that the Roman law declared all alienations of heritage ' null, whether they were made by tutors or by curators. doctrine, in so far as it relates to sales made by a tutor, is agreeable to our usage. Hence, in all sales of a pupil's estate, an action must be brought by him before the Court of Session, to which his next heirs and his creditors must be made parties; and in which an inquiry is made by the court into the yearly rent of 'the pursuer's lands, and the amount of his debts; that, upon balancing the two, they may form a judgment, whether the sale is ' necessary, either in whole or in part, for clearing off the pur'suer's debts; and the session must authorise the sale by a decree pronounced in this action, Ersk. 1. 7. 17; Stair, 1. 6. 18.

270. It is now a settled rule that the Court of Session will not authorise the sale of a pupil's heritage, except upon its being shewn to be absolutely necessary. At one time a different practice prevailed; and applications for authority to sell were listened to, when the measure was shewn to be expedient or advantageous to the pupil. But this practice was found to be attended with se rious inconvenience, and, therefore, in the later cases, the rule above mentioned has been established and repeatedly adhered to. This will appear from the following cases.

The first case to be mentioned is one in which the court authorised the sale of an heritable subject as being for the pupil's advantage. In this case it appeared that the deceased Dr. Plummer was proprietor of an elaboratory for preparing and selling chemical preparations, and a theatre for the accommodation of • students attending lectures upon chemistry. Dr. Plummer died in very good circumstances. The magistrates of Edinburgh, dcsirous that it should be continued, offered to the tutors of the Doctor's son an unexceptionable price for the elaboratory. It was plain that the work could not be continued in the person of the