1853.

DUNCAN

v.

TINDALL.

otherwise such bill of sale &c. shall be void. I think
that is the true way of dealing with the section. The
words are plainly capable of that sense: and, even sup-
posing they are capable of another sense, which would
permit executory contracts, not transferring the property
immediately, without observing the formalities pre-
scribed, that would be letting in a very large portion of
the mischief which the registry acts were intended to
avoid. It is not to be conceived that the legislature in-
tended to make so material an alteration, by a statute
which does not profess at all to vary the substance of the
law as it stood before, as to executory contracts for the
sale of ships. So to construe the statute, would be to
suppose
that the framers of it intended to exclude from
its operation executory contracts, not by express words,
but by inference to be drawn from words that are capa-
ble of a different construction. If even it required some
little violence of construction, I think it would be the duty
of those who have to interpret the act, to adopt that in-
terpretation which will obviate the inconvenience which
it was the manifest intention of the statute to remove.
Looking, therefore, at the policy of the act, as well as at
its words, I think it is obvious that an executory contract
for the sale of a ship, is void in so far as it relates to or
operates on the sale or transfer of the ship. Such a con-
tract is not to be enforced by action like this, any more
than by a bill for a specific performance. The passage
cited from Abbott on Shipping was enough to justify the
doubt expressed by Lord Cranworth in Hughes v. Morris:
but I entirely agree with the construction which the
Lord Justice Knight Bruce puts upon the act, that
what it directs respecting a sale or transfer of the ship,
extends also to a contract for the sale or transfer; and
that, unless those directions are complied with, there can
be neither an action for a breach of the contract, nor a bill

to enforce its specific performance. For these reasons, think this rule should be made absolute.

CRESSWELL, J. I am of the same opinion. A parol contract for the sale of a ship is void: and I think so, whether we take the words of the 8 & 9 Vict. c. 89, s. 34, alone, or in connection with the 26 G. 3, c. 60, s. 17, and 34 G. 3, c. 68, s. 14. The 26 G. 3, c. 60, s. 17, enacts"that, when and so often as the property in any ship or vessel belonging to any of His Majesty's subjects shall be transferred to any other or others of His Majesty's subjects, in whole or in part, the certificate of the registry of such ship or vessel shall be truly and accurately recited, in words at length, in the bill or other instrument of sale thereof; and that otherwise such bill of sale shall be utterly null and void to all intents and purposes." The 14th section of the 34 G. 3, c. 68, recites that section, and further recites that "doubts have arisen whether by the said provision every transfer of property in any ship or vessel is required to be made by some bill, or other instrument in writing, and whether contracts or agreements for the transfer of such property may not be made without any instrument in writing." It is to be observed that this last-mentioned act does not recite that contracts or agreements for transfer were not included in the former provision, or that there had been any decision to that effect, or that there could be an executory contract for the sale or transfer of a ship: but, to remove doubts, it enacts "that no transfer, contract or agreement for transfer, of property in any ship or vessel, made, or intended to be made, after the 1st of January, 1795, shall be valid or effectual for any purpose whatsoever, either in law or in equity, unless such transfer, or contract or agreement for transfer, of property in such ship or vessel, shall be

v.

TINDALL.

1853.

DUNCAN

v.

TINDALL.

made by bill of sale, or instrument in writing, containing such recital as prescribed by the said recited act.” And in Biddell v. Leeder, which arose on the 34 G. 3, c. 68, s. 14, the court of King's Bench held the contract altogether void, and repudiated an attempt on the part of the plaintiff's counsel to bring the case within the principle of Kerrison v. Cole, 8 East, 231. Then came the 6 G. 4, c. 110, s. 31, the words of which are at least as strong as those of the 26 G. 3, c. 60, s. 17. The language of the preamble to the 6 G. 4, c. 105, would lead to the inference that the legislature, in passing the 6 G. 4, c. 110, did not mean to make any alteration in the existing laws regulating the registry of British ships. But it is suggested that they intended, on the authority of Biddell v. Leeder and Mortimer v. Fleeming, to make good executory contracts for the sale of ships. If such had been their intention, one would naturally have expected that they would have done it in a more direct manner than by remitting it to the doubts raised on the former acts. Looking to the course of legislation on the subject, I think the only legitimate conclusion is, that the 6 G. 4, c. 110, s. 31, intended to declare void all such contracts as were declared void by the 34 G. 3, c. 68, s. 14. Taking the words of the 31st section (which are substantially the same as those of the existing act) themselves, I cannot arrive at any other result. They clearly mean that no contract of sale shall be valid, unless the change of property is effected by a transfer in the prescribed form. I am quite prepared to adopt the reasoning of the Lord Justice Knight Bruce, in Hughes v. Morris. I think there is much more ground for holding his conclusion right, than for adopting the suggestion so lightly thrown out in the 5th edition of Abbott on Shipping. Upon these grounds, I concur with my Lord and my Brother Maule in thinking that this rule should be made absolute.

WILLIAMS, J. I am of the same opinion. I entirely agree in the construction put by Lord Justice Knight Bruce upon this statute, in the case of Hughes v. Morris. And, although it is true that that case is open to the observation that the decision does not necessarily involve the present point,-for, assuming that a contract like this could not be enforced by bill for specific performance in equity, it does not necessarily follow that an action will not lie for the breach of it; and Lord Cranworth expressly declined to decide that point (as also did Lord St. Leonards in M'Calmont v. Rankin, 2 De Gex, MN. & G. 403), and it was not necessary for the decision of the case, yet assuming the view there taken of the statute to be the correct one, I think we should be virtually dissenting from it, if we were to adopt the construction contended for on the part of the plaintiff in this case. Nor do I think we would be justified in doing so, by the difference of language used in the present statute, from that of the 34 G. 3, c. 68, s. 14.

Rule absolute.

1853.

DUNCAN

v.

TINDALL.

1853.

Jan. 31.

An award directing payment of a sum of money to a stranger, is not good, unless it

appears on the face of the award that such payment is for the benefit of a party to the submis.

sion.

The court will not make an order under the 1 & 2 Vict. c. 110, for pay

In the Matter of the Arbitration between WILLIAM
LAING and EDWARD TODD.

BY articles of agreement made the 20th of June, 1851,

between William Laing, of Leith, one of the owners of the steam-ship Britannia, of the one part, and Edward Todd, of North Shields, owner of the ship Ann and Elizabeth, of the other part, reciting that "divers disputes and differences have arisen between the said parties hereto, touching a collision which took place between their respective vessels, on or about the 22nd of December last, in the river Tyne; each of the said parties blaming the other, and claiming compensation for the damage sustained by their said vessels,"-in order to put an end to such disputes and differences, and to ascertain, settle, and adjust all accounts, claims, demands, and damages in respect thereof, it was agreed as folin a case where lows:-"That all such disputes and differences, claims, demands and damages as aforesaid, and all other conbeen granted. A dispute troversies and differences now existing between us, the between A. and said parties hereto, shall forthwith be referred to the owners, as to a arbitration and determination of John Rayne, of Newcollision, was

ment of money directed to be paid by an award, except

an attachment

would have

B., two ship

by agreement

referred, the agreement providing that "all such disputes and differences, claims, demands, and damages in respect thereof, should be referred to the arbitrators;" and that "all the costs and charges in and about the submission, the reference, and award, should be in the discretion of the arbitrators." The arbitrators ordered "that all disputes between the parties touching the matters in difference, should cease and determine;" and they further ordered that A. should pay, "for the damages and costs incurred by B. in consequence of the collision, 721. 6s.; " and they further ordered that "the arbitrators' charges and expenses attending the reference, amounting to 627. 14s. 10d., should be borne in equal proportions by A. and B.; and that the said sums of 72l. 6s. and 627. 14s. 10d., making together 1357. Os. 10d., should be paid, within ten days from the execution of the award, to C."-The court refused to make a rule, under the 1 & 2 Vict. c. 110, s. 18, ordering A. to pay the 727. 6s. to B.,-there being nothing on the face of the award to shew how the payment to C. was to enure as a payment for the benefit of B.; although there was an affidavit stating that C. was agent for B.'s vessel, and acted as his agent in the matter of the arbitration, and that the money was directed to be paid to him as such agent.

Semble, that the award did not sufficiently dispose of" the costs and charges in and about the submission, reference, and award."