bited by the statute, or as a retaking after a voluntary escape, which was bad under the authority of the preceding casek, where the distinction between a voluntary and a negligent escape was recognized. A person may be arrested on a Sunday on an attachment for a rescue1. But a rule nisi for an attachment for non-payment of a sum of money, pursuant to the master's allocatur, cannot be served on a Sundaym. If a defendant", after an arrest on mesne process, is rescued on his way to gaol, the only remedy which the plaintiff has, is by an action against the rescuers, since the sheriff is excusable by reason of the rescue; for on mesne process the sheriff is not bound to take the posse comitatus with him, and therefore upon such process it is a good return to return the rescous (2). In an action against the sheriff for an escape on mesne process, if he pleads a rescue, it is not incumbent on him to shew that the rescue was returnedo. 4. The plaintiff must prove the damage sustained by the rescue, viz. the loss of the debt by reason of the escape of the defendant (3). By a contract of sale the property sold was to be paid for in ready money. The vendee induced the servant of the vendor to deliver it for a check upon a banker, by represent k Atkinson v. Jameson, 5 T. R. 25. 1 Willes, 459. m M'Ileham v. Smith, 8 T. R. 86. n May v. Proby, Cro. Jac. 419. (2) If the party is once within the walls of the prison*, though the custody is on mesne process only, yet a rescue thence by any persons (except the king's enemies †) will not excuse the sheriff. So on writs of execution the sheriff cannot return a rescue; for the law supposes that the sheriff is attended with his posse comitatus ‡. So if the defendant is brought out of prison after judgment, and before any charge in execution on a habeas corpus, and is rescued on his way to the judge's chambers, the sheriff will be answerable in an action for an escape; for it is his duty and so he is directed by the writ, to provide for the sure and safe conduct of the party §. (3) With respect to damages, Holt, C. J., in Wilson v. Gary, 6 Mod. 211, said, that the defendants were not entitled to any favour because they were guilty of a violence against the process of the law, and therefore this case was not to be compared to the case of a negligent escape. * May v. Proby, 1 Roll. Rep. 441. resolved, per tot. cur. recognized in 1 Str. 435. + Per Coke in his report of Southcote's case, 4 Co. 84. a. May v. Proby, 1 Rol. Rep. 441. Resolved Per tot. cur. Crompton v. Ward, Str. 429. ing it to be as good as ready money; in fact he had overdrawn his account for many months. The vendor, after keeping the check for two days presented it at the bankers, when payment was refused. On the same day that the goods were purchased, the vendee gave a warrant of attorney to a creditor, under which judgment was immediately entered up and execution issued, and the property in question seized by the bailiff of a liberty; while it was in his custody, the vendor rescued it; it was holdenP, in an action brought against the latter by the bailiff of the liberty, for the rescue, that the question whether the contract of sale was so vitiated by fraud, as to prevent the property in the goods passing to the vendee, depended upon a question of fact which ought to have been submitted to the jury, viz., whether the vendee had obtained possession of the goods with a preconceived design not to pay for them? for if he had, that would be such a fraud as would vitiate the sale, and prevent the property from passing to him. Where a draft for money was intrusted to a broker to buy exchequer-bills for his principal, and the broker received the money and misapplied it by purchasing American stock and bullion, intending to abscond with it and go to America, and did accordingly abscond, but was taken before he quitted England, and thereupon surrendered to the principal the securities for the American stock and the bullion, who sold the whole and received the proceeds: it was holden, that the principal was entitled to withhold the proceeds from the assignees of the broker, who became bankrupt on the day on which he so received and misapplied the money. p Earl of Bristol v. Wilsmore, 1 B. & C 514. q Taylor v. Plumer, 3 M. & S. 562. See Gladstone v. Hadwen, 1 M. & S. 517. CHAP. XXXV. SHIPPING. I. Of the Ship Registry Statute, 3 & 4 W. 4. c. 55. II. Of Seamens' Wages and the Statutes relating thereto, viz. 5 & 6 W. 4. c. 19.-8 G. 1. c. 24. III. Of the Liability of Ship-owner for Repairs, &c. 1. Of the Ship Registry Statute, 3 & 4 W. 4. c. 55. (1). THE registering of ships appears to have been first introduced into practice in this country by the Navigation Act, 12 Car. 2. c. 18. s. 10. A. D. 1660, but that statute only required foreign ships British owned to be registered. The stat. 7 & 8 W. 3. c. 22. s. 17, required British or plantation built ships, British owned, if intended to be employed in the plantation trade, and also prize ships, to be registered. All former laws relating to the registering of British vessels, having been repealed by the stat. 6 Geo. 4. c. 105. an act was passed, 6 Geo. 4. c. 110, which came into operation on the 5th of January, 1826.-This act, has also been since repealed by stat. 3 & 4 W. 4. c. 50. and new provisions for registering British vessels have been made by stat. 3 & 4 W. 4. c. 55. The important points of difference between the regulations now in force, and those which were in force before the stat. a See Abbott on Shipping, p. 246. b See Abbott on Shipping, p. 26. n. c. 5th ed. (1) So much of this act as establishes rules for ascertaining the tonnage of ships has been repealed, so far as respects the merchant shipping of the United Kingdom, by stat. 5 & 6 W. 4. c. 56. 6 Geo. 4. c. 110, are these: 1st, it is no longer necessary to recite the certificate of register in a contract for the sale of a ship. 2ndly, In a bill of sale or other instrument intended to operate as a transfer of the property, it is sufficient to recite the principal contents of the certificate, and a provision is introduced with a view to prevent the effect of certain errors in the recital. See s. 31 (2). 3dly, the indorsement on the certificate is to be made by the public officers, instead of the party transferring, s. 34. 4thly, A mortgagee or trustee for the payment of debts, is not to be deemed an owner, (see s. 42;) nor is his interest to be affected by the subsequent bankruptcy of the mortgagor or assignor, on the ground of reputed ownership, (see s. 43. Robinson v. M'Donnell, 5 M. and S. 228. and ante, vol. 1. p. 209, n.). 5thly, The specific share of every part owner must be mentioned in the registry, except in the case of partners in trade, whose interest is to be considered as partnership property, see s. 32. Before the statute 6 Geo. 4. c. 110, it was not necessary, that the proportions in which the several owners were interested should appear on the registry. See exp. Jones, 4 M. and S. 450. 6thly, Only thirty-two persons shall be entitled to be legal owners as tenants in common, or to be registered as such, with a provision for the equitable title of minors, legatees, creditors, &c. and also for joint stock companies, see s. 33. Lastly, Copies of declarations and entries in the books of the Custom House are made evidence, in order to prevent the necessity of the attendance of the public officers to produce the originals. Having premised that it does not appeard that any ship is absolutely required to be registered, and that the register is necessary only for the purpose of conferring the privileges of a British ship; I shall proceed to arrange the several enactments of the last registere act, as far as they fall within the limits of this work, under the following heads, suggested by the learned author of the Treatise on Shipping: c This had been holden to be necessary d Abbott, 28. under the 34 Geo. 3. c. 68. s. 14. e See 3 & 4 W. 4. c. 55. s. 2. See Biddell v. Leeder and Pulham, 1 B. & C. 327. (2) It had been holden under the former statutes, that a mere clerical mistake would not vitiate the bill of sale, where the certificate was in effect the same with the recital, and the error was apparent on the face of the instrument; Rolleston v. Smith, 4 T. R. 161. but that a substantial variance between the certificate and the recital was fatal. Westerdell v. Dale, 7 T. R. 306. I. What Ships are entitled to become and continue registered Ships. II. Who may be registered as Owners. III. At what Place Ships shall be registered. IV. Of the Requisites of the Certificate. V. What is required on the Part of the Owners to obtain Registry. VI. Of the Transfer. VII. When and how Registry de novo is to be made, and herein in what Cases a temporary Certificate or License may be granted. VIII. What is required upon the Change of a Master. IX. Penalty for Detention of Certificate. X. What shall be sufficient Evidence of Affidavits and Books of Registry. I. What Ships are entitled to become and continue registered, and herein of the three Instances in which Ships once registered lose their Privileges. No ship shall be registered, or, having been registered, shall be deemed to be duly registered, by virtue of this act, except such as are wholly of the built of the united kingdom, (3) or of the Isle of Man, or Guernsey or Jersey; or of some of the colonies, plantations, islands, or territories in Asia, Africa, or America; or of Malta, Gibraltar, or Heligoland, which belong to his majesty at the time of the building of such vessels; or such vessels as shall have been condemned, in any court of admiralty as prize, or in any competent court, as forfeited for the breach of the laws f S. 5. (3) By stat. 3 & 4 W. 4. c. 54. s. 12, no ship shall be admitted to be a British ship unless duly registered and navigated as such; and every British registered ship shall be navigated during the whole of every voyage, (whether with a cargo or in ballast,) in every part of the world, by a master who is a British subject, and by a crew whereof three fourths at least are British seamen; and if such ship be employed in a coasting voyage from one part of the united kingdom to another, or in a voyage between the united kingdom and the islands of Guernsey, Jersey, Alderney, Sark, or Man, or from one of the said islands to another of them, or be employed in fishing on the coasts of the united kingdom, or of the said islands, then the whole of the crew shall be British seamen. |