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purchase, and the registration of the ship de novo in the port of London, as ftated in the cafe.

As to the first of these objections, affuming it to be well founded, and we think it fo, it has only the effect of precluding the plaintiffs, who are three out of the four affignees in whom the property of the fhip originally was (and until a new affignment is made under the order of the Ld. Chancellor, continues to be) vested, from recovering more than their three-fourth parts in value of the property in question. For it is now too well fettled to be any longer difputed in a court of law, that the defendant can only avail himself of an objection of this fort, viz. that all the Several part owners in a chattel have not joined in an action of trefpafs, or of tort brought in refpect to it, by plea in abatement. I will only refer to Addifon v. Overend, 6 Term Rep. 766, in which most of the cafes on the fubject are collected; and Sedgworth v. Overend, 7 Term Rep. 279.

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As to the fecond objection, viz. that there is no proof of any converfion by the defendants of the fhip in queftion; if in the refult it shall appear that the defendant had no title to the ship in question at the time when he fold her by public auction on the 19th of February 1802, and afterwards, on the 5th of April 1802, affigned her to perfons who fent her to fea, where fhe was loft, it will in that cafe be very difficult to state an instance of an actual converfion to their own use more absolute and perfect on the part of the defendant than this. And though Ward could not, as the defendant's counfel faid, have complained of the fale by Hubbard as a tortious act, it does not follow from thence that his affignees cannot. Ward could not have maintained trover for the fhip against Hubbard while in his poffeffion; but the plaintiffs, his affignees, most unquestionably might have brought fuch action if the property in the fhip paffed to them under the commiffion. It is by no means true, as a general propofition, that the affignees can maintain no other actions than what might have been maintained by their bankrupt. A bankrupt cannot recover the value of goods he had delivered in pursuance of a purpose of fraudulent preference in contemplation of bankruptcy, which his affignees may, and in daily practice constantly do. And And many other instances to the fame effect might be put.

As to the third objection, that the plaintiffs as affignees ought to have derived title to themfelves by a compliance with the requifites of the ftatutes 26 Gro. 3. and 34 Geo. 3. (called Lord LiVOL. V.

Y

verpool's

1804.

BLOXAM and Others against HUBBARD.

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BLOXAM

and Others

against HUBBARD.

verpool's Acts) in respect to the transfer of property in ships; it is an objection which, if it could prevail, would have the effect of defeating every title that has been hitherto made under a commiffion of bankrupt to this fpecies of property fince the paffing of thofe ftatutes. For I believe that in no inftance the Tequifites of thofe ftatutes will be found to have been complied with in regard to affignments by commiffioners of bankrupt. [422] But there is no ground for this objection. Thefe ftatutes only relate to transfers made by the act of the parties, viz. from a former owner to a new owner, and where the transfer is capable of being effectuated in the ordinary way by the mere operation of an inftrument of affignment from the one party to the other, and do not relate to transfers deriving their effect by peculiar provifion or operation of law, as affignments by commiffioners of bankrupt to affignees under the bankrupt laws do. There the commiffionersare not former owners; they do not fell in the fense in which the word fale is used in thefe ftatutes 26 and 34 Ge. 3.; although in pursuance of the directions of the ftat. 13 Eliz. c. 7. S. 2. and other later statutes, they make fale theref in point of form by deed indented and enrolled, &c. as being the means fpecially appointed and defcribed by the latter of thofe ftatutes for the execution of the power given to the com miffioners in this refpect, for the vefting of fuch property of the bankrupt in his affignees accordingly. The form of indorsement on change of property in the 15th fection of the flat. 34 Geo. 3. c. 68. clearly fhews that the fale therein meant was a fale from a former proprietor. It runs thus: "Be it remembered, that [I or we] [names, refidence, and occupation, of the perfons felling] have this day fold and transferred all [my or cur] right, fhare, or intereft, in and to the fhip or veffel," &c. But how can commiffioners of bankrupt poffibly be confidered as perfons felling any right, fhare or interest of their own within the meaning of these words [my or our]? The property transferred by them is neither legally nor equitably theirs: it does not vest in them for an inftant: it paffes by them, or rather by the act they are directed and empowered to perform, and not through them. It appears therefore to us that the affignments made by commiffioners of bankrupt to the affignees of a bankrupt were not meant by the legislature to be comprehended in the provifions directed to be purfued in refpect to the transfer of property in fhips between fellers and buyers; and that of course the af fignment in this cafe is not liable to the objection which has

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been made on this ground. If indeed this objection were allowed, it would alfo defeat the object of provifional assignments, fo far as refpects a bankrupt's fhip, and the crown's extent would conftantly have the preference.

Suppofing therefore that the title of the plaintiffs to recover in this action is not affected by any of these three objections, it remains to be confidered whether the defendant has upon the face of this cafe a good title to the fhip in queftion, in virtue of his purchase and the fubfequent registration de novo above ftated? And this depends upon the provisions contained in the ftatutes 7 & 8 W. 3. c. 22.; 26 G. 3. c. 60.; and 34 G. 3.c. 68. as far as they respect the transfer of the entire property in a ship, and particularly upon the application of the provifions contained in the 16th fe&ion of the ftat. 34 G. 3. c. 68. to the cafe of a transfer of the entire property in a veffel when at fea or abfent from the port to which he belongs, as this fhip was at the time when the affignment of it was made to the defendant. And first, the ftat. 7 & 8 W. 3. c. 22. f. 21. provides, that no fhip's name shall be changed without registering fuch fhip de novo, which is required to be done upon transfer of property to ANOTHER port, and delivering up the former certificate to be cancelled. And in cafe there be any alteration of property in the fame port by the fale of one or more fares in any fhip after regiftering thereof, fuch fale fhall always be acknowledged by indorsement of the certificate of registry before two witneffes, in order to prove that the entire property in fuch fhip remains to fome of the fubjects of England. It is to be obferved, that here is no provision in cafe of fale of the fhip at the fame port, for proving it to continue English property, if an indorsement on the certificate be only to be made in the case of a partial sale; for a new register is not re quired but on a transfer to another port. The ftat. 26. G.3.c. 60. 3. reciting that it is expedient that the provisions made in the ftat. 7 & 8th of King William fhould be altered and amended, and that the fame should be extended and applied to ships other than thofe therein defcribed, enacts what fhips fhall be regiftered. And by/. 4. directs that no regiftry fhall be made but at the port to which fuch foip or vessel properly belongs. And ƒ. 5. enacts that the port, to which any ship or vessel shall thereafter be deemed to belong within the meaning of that act, shall be the port from and to which fuch fhip ball ufually trade, ot being a new ship shall intend to trade, and at or near which the husband or

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and Others againf HUBBARD,

BLOXAM

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BLOXAM

acting manager, or owner, ufually refides. The 16th fection, reciting, that the provifions made in and by the said recited act and Others touching the indorsements on certificates of regiftry, in cafe of againf ANY alteration of property in any ship or vessel in the same port, to HUBBARD. which the ship or vessel belongs, have been found infufficient, enacts, that in every such case, befides the indorsement required by the faid recited act, there fhall also be indorfed on the certificate of registry before two witneffes, the town, place, or parish, where all and every perfon or perfons to whom THE PROPERTY in any fhip or vesel, or any part thereof, fhall be fo transferred, fhall refide, &c.; and the perfon to whom the property of [425] fuch fhip or veffel fhall be fo transferred, fhall deliver a copy of fuch indorsement to the perfons authorised to make registry, and who are to make an entry thereof to be indorsed on the oath or affidavit upon which the original certificate of registry was obtained, and to make a memorandum in the book of registers, and give notice to the commiffioners of the customs. This clause speaks of transfer of the property in the ship or any part thereof; either confidering the provisions for indorsement made by the ftatute of King William as extending to a transfer of the whole, or meaning to remedy the defect in their not being already fo extenfive. It is either a legiflative expofition of the ftatute of King William, or an enlargement of it. The ftat. 34 G. 3. c. 68. f. 15., reciting, that by the laws now in force upon any alteration of property in any ship or veffel in the fame port to which fuch fhip or veffel belongs, an indorsement upon the certificate of registry is required to be made, enacts that fuch indorfement fhall be made by the perfon "transferring THE PROPERTY of the fhip or vessel," &c. and prefcribes the form. This claufe alfo confiders the indorsement neceflary upon ang alteration of property, and does not speak of the perfon felling one or more fhares in the vessel, but of perfons "transferring the PROPERTY of the fhip." And this act is in furtherance of the pro. vifions of the ftat. 26 G. 3. It is to be obferved also, that the expreffion in the ftatute, of an alteration of property taking place in the port to which the fhip belongs, means when the ship is in the port at the time the change of property takes place; in which case fuch change is to be indorsed on the certificate of registry; and is put is in oppofition to the cafe of the fhip being absent from the port, or at fea (which is the object of the 16th fection of this act), in which cafe the certificate being with the ship, the

change

change of property cannot be indorfed thereon, and is therefore directed to be noticed on the oath and in the book of regifters. The 16th fection, as already observed, provides for the cafe of the absence of the ship from the port to which the belongs at the time when fuch alteration in the property thereof fhall be made as aforefaid. That alteration, by reference to the preceding fection, is any alteration, and, by referring again to the 16th fection of the ftat. 26 G. 3. is any alteration by which the property in any fhip or any parts thereof may be transferred. If thefe provifions be to be conftrued as being confined and limited to the transfer only of fhares and parts of fhips, this mischief might follow, viz. that the whole of the ship might by bill of fale be transferred to a foreigner, and if fhe did not change her port, the veffel might still trade with all the advantages of a British ship. But no fuch thing can happen, if the certificate of the registry be indorfed, as that must be fhewn to the officers of the customs when required. And what reafon can there be, if a ship be at fea, and any fhares be fold, that the provifions of the 16th fection of the ftat. 34 G. 3. fhould be complied with; but not, if the whole be fold? For according to that construction, at least until the return of the fhip, all the mifchiefs intended to be prevented by the 16th fection as to the transfer of parts of the ship would fubfift as to the whole fhip, if transferred when at fea. In M'Neil's cafe in Reeves 'Hiftory of Shipping, p. 504. Lord Camden, prefident of the council, faid, that he thought the ftat. 26 G. 3. was an act which in every view of it should be confidered as a remedial act; it was to prevent a public mischief; to amend and alter the ftat. 7 & 8 W. 3. It had appeared that frauds without number were committed under that act; and that was ftated to be the reafon of making the ftat. 26 G. 3. The rule therefore of construction in applying and explaining the act should be fuch as will moft aid the advancing the means of relief and in fuppreffion of fraud. And adopting this rule of construction, and collecting the intention of the legislature as well as we are able from these feveral acts of Parliament, we feel ourselves obliged to confider the provifion contained in the 16th section of the ftat, 34 G. 3. c. 68. as to the alteration of property in a fhip or veffel at fea, or abfent from the port to which the belongs," as applying to any alteration of property in the fhip or veffel, whether the fame be made by the transfer of the whole or by the fale of any share or number of shares therein,

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and Others againft HUBBARD.

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