seized by the bailiff of a liberty; while it was in his custody, the vendor rescued it; it was holden (u), 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 (x), 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.

(u) Earl of Bristol v. Wilsmore, 1 B. & C. 514.

(x) Taylor v. Plumer, 3 M. & S. 562. See Gladstone v. Hadwen, 1 M. & S. 517.

CHAPTER XXXV.

SHIPPING.

1. Of the Ship Registry Statute, 3 & 4 Will. IV. c. 55, p. 1224. II. Of Seamen's Wages and the Statutes relating thereto, viz. 7 & 8 Vict. c. 112, p. 1241; 8 Geo. I. c. 24, p. 1245. III. Of the Liability of Ship-owner for Repairs, &c., p. 1250.

I. Of the Ship Registry Statute, 3 & 4 Will. IV. c. 55 (1). THE registering of ships appears to have been first introduced (a) into practice in this country by the Navigation Act, 12 Car. II. c. 18, s. 10, A. D. 1660 (b), but that statute only required foreign ships British owned to be registered. The stat. 7 & 8 Will. III. 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 All former laws relating to the registering of British vessels, having been repealed by the stat. 6 Geo. IV. c. 105, an act was passed, 6 Geo. IV. c. 110, which came into operation on the 5th of January, 1826.-This act has also been since repealed by stat. 3 & 4 Will. IV. c. 50, and new provisions for registering British vessels have been made by stat. 3 & 4 Will. IV.

c. 55.

(a) See Abbott on Shipping, p. 246, n. c., 5th edit.

(b) The present Navigation Act is the 3 & 4 Will. IV. c. 54, amended by stat. 4 &

5 Will. IV. c. 89, s. 11. See as to the construction of the former act Thompson v. Irving, 7 M. & W. 367.

(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 Will. IV. c. 56. As to ships built and trading within the limits of the East India Company's charter, see stat. 3 & 4 Vict. c. 56.

The important points of difference (c) between the regulations now in force, and those which were in force before the stat. 6 Geo. IV. c. 110, are these: 1st, It is no longer necessary to recite the certificate of registry in a contract for the sale of a ship (d). 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 sect. 31 (2). 3dly, The indorsement on the certificate is to be made by the public officers, instead of the party transferring sect. 34. 4thly, A mortgagee or trustee for the payment of debts, is not to be deemed an owner, (see sect. 42,) nor is his interest to be affected by the subsequent bankruptcy of the mortgagor or assignor, on the ground of reputed ownership, (see sect. 43, Robinson v. M'Donnell, 5 M. & S. 228, and ante, vol. 1, p. 232, 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 sect. 32. Before the statute 6 Geo. IV. c. 110, it was not necessary that the proportions in which the several owners were interested should appear on the registry (e). 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 sect. 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 appear (f) 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 Register (g) 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 :

I. What Ships are entitled to become and continue registered Ships, p. 1226. II. Who may be registered as Owners, p. 1228.

(c) See Abbott on Shipping, p. 26. (d) This had been holden to be necessary under the 34 Geo. III. c. 68, s. 14. See Biddell v. Leeder and Pulham, 1 B.

& C. 327.

(e) See Exp. Jones, 4 M. & S. 450. (f) Abbott, 28.

(g) See 3 & 4 Will. IV. c. 55, s. 2.

(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.

III. At what Place Ships shall be registered, p. 1229. IV. Of the Requisites of the Certificate, p. 1229. V. What is required on the Part of the Owners to obtain Registry, p. 1230. VI. Of the Transfer, p. 1232. VII. When and how Registry de novo is to be made, and herein in what Cases a temporary Certificate or License may be granted, p. 1237. VIII. What is required upon the Change of a Master, p. 1239. IX. Penalty for Detention of Certificate, p. 1240. X. What shall be sufficient Evidence of Affidavits and Books of Registry, p. 1241.

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 (h) 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 made for the prevention of the slave trade, and which shall belong wholly to his majesty's subjects duly entitled to be owners of vessels registered by virtue of this act.

(h) 3 & 4 Will. IV. c. 55, s. 5.

(3) By stat. 3 & 4 Will. IV. 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.

In what Cases a Ship shall cease to enjoy the Privileges of a British Ship; 1st, In the Case of Repair in a Foreign Country.

If a ship has been repaired (i) in a foreign country, and the repairs exceed 20s. for every ton, unless such repair shall have been necessary, by reason of extraordinary damage sustained by the vessel, during her absence from his majesty's dominions, to enable her to perform the voyage in which she shall have been engaged, and to return to some place in his majesty's dominions. In this case, upon arrival at a port in his majesty's dominions, the master, upon the first entry, is to report to the collector and comptroller, that the vessel has been so repaired, under penalty of 20s. per ton; and in the event of its being proved, to the satisfaction of the commissioners, that the vessel was seaworthy when she last departed from his majesty's dominions, and that no greater quantity of repairs had been done than was necessary, the commissioners may direct the collector and comptroller to certify, on the certificate of registry, that it has been proved that the privileges of the vessel have not been forfeited.

2. If Ship be Stranded or not Seaworthy.

If any ship (k) registered under the authority of this or any other act, shall be deemed or declared to be stranded or unseaworthy, and incapable of being recovered or repaired to the advantage of the owners, and shall for such reasons be sold, by order or decree of any competent court, for the benefit of the owners or other persons interested therein, the same shall be deemed to be a ship lost or broken up to all intents and purposes within the meaning of this act, and shall never again be entitled to the privileges of a British built ship for any purposes of trade or navigation.

3. In the Case of Capture.

No British ship (1) which has been or shall hereafter be captured by and become prize to an enemy, or sold to foreigners, shall again be entitled to the privileges of a British ship; provided that nothing contained in this act shall extend to prevent the registering of any ship which shall be condemned in any court of admiralty as prize of war, or in any competent court, for breach of laws made for the prevention of the slave trade.

(i) 3 & 4 Will. IV. c. 55, s. 7.

(k) Sect. 8.

(1) Sect. 9.