In the former case, the sale is regulated by 7 and 8 William III. c. 22. § 21; 26 Geo. III. c. 60, § 16; and 34 Geo. III. c. 68. § 15.

In the latter case the sale is regulated by 34. Geo. III. c. 68. § 16*.

86. (2.) If at the time of the sale, the owner's residence be out of the king's dominions, the 17. clause of 34. Geo. III. c. 68. must be attended to.

87. (3.) In the case of a partial transfer of property in the same port, instead of the indorsement required by 34 Geo. III. c. 68. § 15, the ship may, under certain circumstances, be registered de novo, in terms of the 21st clause of the same statute, and in all such cases the bill of sale must be produced, as directed by the 20th section.

88. Having thus detailed the provisions made by statute for regulating the sale of property in ships, I proceed to mention the judgments that have been given by courts of law upon the ques

tions which have arisen under these acts.

89. I. The first class of cases to be noticed, are those in which the question occurred, whether the forms required to be observed in the actual transfer, are essential to the validity of preliminary contracts or agreements, which are only preparatory to the actual transfer, and are intended to be followed by a regular conveyance in terms of the statutes.

90. In one case, which was decided by the First Division of the Court of Session, effect was given to a preliminary transaction of this sort. In this case, Robert Wilson, by a missive letter, in which there was no recital of the certificate of registry, made an offer of the Brigantine New Success to James Miller, at the price of 1600 guineas. James Miller, in a written answer, accepted of the offer on the terms proposed. The vendor then intimated the sale to the master, and directed him to obey the orders of the vendee. The vendee gave certain orders accordingly, and also directed some repairs to be made on the ship. He likewise ac

• An important case is now depending in the House of Lords, in which the question is, whether this clause applies to the case of a ship which is sold while at sea, and where it is not intended that she should return to her own port, the vendee's residence being in a different port, and whether the vendee in such a case may complete his title by getting the ship registered de novo, in the port where he himself resides, without complying with the requisites of this clause. Opposite decisions have been given by the Court of King's Bench and the Court of Exchequer Chamber, to which the case in question was removed by writ of error, vide infra. No. 128.

cepted a bill for part of the price. A dispute afterwards took place between the parties, in consequence of which the vendee took a protest, stating that the vendor, by his proceedings, had frustrated his object in purchasing the ship, and that he held the bargain to be voided. A few days after this the vendor tendered a regular vendition to the vendee on condition of his accepting bills for the price. This was refused, and an action was raised to compel implement of the bargain. On the part of the vendee reference was made to the 26 Geo. III. c. 60. § 17, and to 34 Geo. III. c. 68. § 14. But a majority of the court were of opinion as stated in the report, that to the effect of binding the defender to ac'cept of a regular vendition and to pay the price, the missives ' were good without insertion of the certificate of registry. One 'Judge (Lord President) appeared to rest his opinion upon the 'circumstance, that this was not an action for transfer of a ship, but for payment of the price of a ship, which had, in consequence ' of agreement, actually been delivered, and of which a regular vendition was offered debito tempore.' Macnair v. Miller, 2d

Dec. 1808.

91. This decision cannot be reconciled with the judgments and opinions which have been delivered in a series of analogous cases in England.

92. In the case of Rolleston v. Hibbert, which was the first case that occurred upon the 26. Geo. III. doubts were indeed expressed both in the Court of King's Bench, (see Lord Kenyon's Speech, 3 T. R. 412,) and in the Court of Chancery, (3 Bro. Chan. Ca. 575,) whether, notwithstanding that statute, a valid contract might not be made without observing the statutory forms, which might give an equitable title to the ship, and might be enforced against the vendor so as to compel him to grant a regular conveyance according to the statute. In consequence of these doubts, as has already been mentioned, an additional clause was inserted in the 14th section of the subsequent act of 34. Geo. III. for the purpose of removing them. See Speech of Lord Chancellor Eldon in Dixon v. Ewart, 3 Meriv. 332. Even under the former act, however, it ap pears, that although the case just mentioned of Hibbert v. Rolleston was not decided in public, the Lord Chancellor (Thurlow) held that the contract there in question could not be recognized even in a Court of Equity. His Lordship gave his reasons to the counsel on both sides, and the ground of his judgment as stated by Lord Eldon in the subsequent case of Mestaer v. Gillespie, 11. Ves

Jun,. 625, was 'that the policy of that act of Parliament was to make the instrument so defective, void to all intents and pur

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poses; and the object of that policy could not be attained, if such a thing as an equitable title to the ship could subsist, as ' parties might rest upon their equitable title without desiring the legal title.'

98. In this case, it is true the foundation of the vendee's title was an informal bill of sale, and it may be said therefore, that although where the object was to give the vendee a complete legal title immediately by a deed framed in terms of the statutes, the deed must be absolutely null, if it is not in terms of the statutes, yet, that an equitable title, which might be the foundation of an action to compel implement of the sale, according to the legal forms, as in the case of Macnair v. Miller, may, notwithstanding, be acquired by an agreement not intended at all to be in terms of the statutes. So accordingly it was argued in the next case which occurred in England. But the Court of King's Bench held, that under such an agreement, even an insurable interest could not be acquired, and that there could now be no such thing as an equitable interest in ships, in contradistinction to a legal title.

This was an action upon a policy of insurance on freight, and where it appeared that the ship in question, the freight of which was the subject of the insurance, had been paid for by the four persons named in the last count of the declaration, who were in partnership, but that she was registered in name of two of them only. Upon this it was insisted by the defendant, that as the plaintiffs' title to freight arose only from their ownership, the register was decisive evidence that no other persons than the two therein named were interested in the property. On the part of the plaintiffs it was maintained, that it was competent to the two parties, whose names were in the register, to transfer their right by a parole agreement to the other two partners, in conjunction with themselves, notwithstanding the decision in Rolleston v. Hibbert, for that case only determined that no right passed by an imperfect bill of sale under the 26th Geo. 3. c. 60. But Lord Kenyon said, and the Court decided accordingly, that if the 'plaintiffs had let out the ship to other persons, perhaps those ⚫ persons would not have been suffered to contest the plaintiffs' ti'tle; but here the plaintiffs claim the freight only in right of ' ownership, and cannot recover without shewing a right of ownership; they had no right to insure the freight, unless they show

a right to the ship. It is not pretended that they had any legal title to the ship; and according to the Lord Chancellor's deci'sion in Hibbert v. Rolleston, they have no equitable title. His 'Lordship thought that the register act was equally binding in a 'court of equity as in a court of law, and refused to compel the ' vendor to make a legal conveyance to the purchaser. And indeed if an equitable interest in ships could prevail in contradistinction 'to a legal interest, it would repeal the wise provisions of that act, ' which has already proved highly beneficial to the trading and 'commercial interests of this country? The other judges gave opinions to the same effect, Camden v. Anderson, 5. T. R. 709. 94. The same doctrine has been repeatedly confirmed since the passing of the act of the 34 Geo. III. c. 68.

Thus a case came before the Lord Chancellor somewhat similar to Camden v. Anderson, where a ship was purchased by one partner, intended to be for a partnership, but was registered in name of one of the parties only, and the ship was held, in a question between the creditors of the two partners, to be the separate property of him in whose name she was registered. His Lordship observed, that where the interest in a ship is derived under a party's own act and contract not executed according to the registry acts, it cannot be reformed in equity, any more than an annuity deed not pursuing the forms of the annuity act, Curtis v. Perry, 6. Ves. Jun. 746.

Some years afterwards, the same question came for decision before the Lord Chancellor, in a case free from any specialties which might affect the judgment, in which his Lordship, speaking of the two acts of 26 Geo. III. c. 60, and 34 Geo. III. c. 68, says, they go so far as to declare, that notwithstanding any transfer, 'any sale, or any contract, if the purpose is not executed in the 'mode and form prescribed by the act, it shall be void to all in'tents and purposes. The consequence established by positive ⚫ and repeated decisions is, that upon a contract for the purchase of a ship, which, it may be supposed, might have been executed 'without public mischief, though by force of that contract, and by operation of law, the purchaser would be the owner in equity 'from the moment of the purchase, and the vendor from that 'moment would be divested of all interest, yet it is decided, that these acts are so imperative, that, if they rest upon the contract, it cannot be said of a ship as of an estate, that by opera<tion of law, and by force of the contract, the ownership is chang

F

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ed; and, if the money had been paid, the decision would be

⚫ upon the same principle, and it must be recovered by another "form of proceeding.' Yallop ex parte, 15 Ves. Jun. 60.

These principles have been repeatedly confirmed in later cases, both in the Court of Chancery and in the Court of King's Bench, in which it is held to be settled, that no inchoate title can be sustained in opposition to the terms of the statutes, and that any transfer, or contract for the transfer of a ship which is not executed in the form prescribed by the statutes, is void to all intents and purposes, Houghton ex parte; Gribble ex parte, 17 Ves. 251; Thomson v. Leake, 1 Mad. 39; Brewster v. Clarke, 2 Meriv. 75; Dixon v. Ewart, 3 Meriv. 322; Abbot on Shipping, p. 44 and 68; Holt on Shipping, 1-297 et seqq. Stringer v. Murray, 2 Barn. and Ald. 248. See also Abbott, 67. § 43.

95. The same principles have been adopted in the Court of Admiralty in England. Thus in the case of the New Draper, 4 Rob. A. R. 287, which was a suit instituted by a majority of the part owners against the master, who was also a part owner, for possession of the ship, and in which the master resisted the application, upon the ground of an agreement alleged to have been made with an agent of some of the part owners for the purchase of their shares, which would have given him a majority of interest, Sir W. Scott decreed possession to be given to the other owners, notwithstanding the alleged contract of sale founded on by the master. Some other objections were made to the contract; but the learned Judge rested his opinion upon this ground:• Independent of any other objection, I do not think that, under the act of Parliament, it would be possible for this Court to re'cognise such a transaction as this; for the words of the act are 6 as strong as they can be, "that no contract or agreement shall "be of any avail for any purpose whatever, either in law or equi❝ty, unless such transfer, contract, or agreement, shall be made "by bill of sale, or instrument in writing, containing the recital "prescribed by the said act." See also Case of the Sisters, 5 Rob. A. R. 155.

96. II. The second class of cases are those in which a bill of sale, or other instrument, has been actually executed, for the purpose of transferring the property to a purchaser; and the question is, whether such bill of sale, or other instrument, is framed in terms of the statutes, so as to be valid and effectual.

97. Upon this matter, it has been held in Scotland in one case, that the vendition (bill of sale) of a ship, which in the certificate