1805. Moss of July, 1799." But that indorsement was not signed on the 29th of July, 1799, by Twemlow and M'Dowal, or by and Another, any person authorized by them; nor was such indorsement Assignees, &c. signed by Twemlow and M'Dowal until the 24th of June, against MILLS. 1802, as after mentioned. On the 29th of July, 1799, Kirkpatrick had the ship registered at the port of Liverpool in his own name," when the certificate of registry before-mentioned, granted to Twemlow and McDowal, was delivered up and cancelled;" and the same was produced at the trial by a clerk from the proper custody of the Custom house, London 3 and Kirkpatrick obtained the following certificate of registry; viz. "In pursuance of the act (26 Geo. 3, c. 60) John Kirkpatrick, of Liverpool, &c. merchant, having taken and subscribed the oath required by this act, and having sworn that he is sole owner of the ship called The Samaritan's Hope, of Liverpool, whereof F. S. is at present master; and that the said ship was built at Scarborough, in the county of York, in 1798 (the former register, granted at Liverpool, No. 135, dated 17th July, 1799, delivered up and cancelled) and W. S. tide-surveyor, and W. Y. jerquer, having certified to us that the said ship is British-built (describing it as [146] required by the act); and the said subscribing owner having Certificate of registry de πουο. caused sufficient security to be given, as is required by the said act, the said ship, Samaritan's Hope, has been duly registered at the port of Liverpool. Given under our hands and seals of office, at the Custom-house, in the said port of Liverpool, this 29th of July, 1799, A. Onslow, collector; E. Rigby, comptroller." Under all or some of the above mentioned documents, Kirkpatrick took possession of the ship, and exercised acts of ownership upon it in respect thereof. In February, 1800, Kirkpatrick, by a bill of sale, which recited the said certifi cate of registry granted to Twemlow and M'Dowal, assigned the ship, for the considerations therein mentioned, to Young and Glennie, who then resided in London; who, in August 1800, by bill of sale, assigned the same for a valuable consideration to Hamilton and Touray, then also residing in London; and in February, 1801, Hamilton and Touray, by bill of sale, in consideration of 1800l. actually paid by the defendant Mills, assigned it to him, then and still resident in London; but no indorsement was made on any certificate of registry, 1805. Moss and Another, Assignees, &c. against MILLI. registry, in respect of either the said bill of sale from Kirkpatrick to Young and Glennie, or of that from Young and Glennie to Hamilton and Touray, or of that from Hamilton and Touray to Mills; nor was any copy of the said three last mentioned bills of sale delivered, or any other of the requisites of the register acts complied with, in respect of the said last-mentioned bills of sale. Immediately after the lastmentioned bill of sale, the defendant Mills, took possession of the ship, and still has it. The bill of sale from Twemlow and M'Dowal to Kirkpatrick, of the 6th of July, 1799, is now in the possession of the defendant Mills; and has been so since February, 1801. In November, 1800, Kirkpatrick became a bankrupt, and a commission of bankrupt issued against him; and the plaintiffs are his assignees. [147] On the 14th of August, 1802, Kirkpatrick obtained his certificate. The indorsement made as before mentioned, on the certificate of registry granted to Twemlow and M'Dowal, and dated the 29th of July, 1799, was signed by them, in presence of two witnesses, upon the 24th of June, 1802, and not before. After which day the plaintiffs demanded the ship in question of the defendants; who refused to deliver her up, and converted her to their own use. The question for the opinion of the Court was, Whether the plaintiffs were entitled to recover? If so, the verdict to stand; if not, a nonsuit to be entered; and with liberty to either party to turn this case into a special verdict. This case was argued in Michaelmas Term last, by Littledale for the plaintiffs. Kirkpatrick's title is under the bill of sale of 6th of July, 1799; under which he exer cised acts of ownership, and the subsequent register de novo of the 29th of July; and his title is now vested in the plaintiffs, his assignees, unless it has been legally conveyed by him to any other; but though there be three bills of sale, under which the defendants claim, yet none of the requisitions of the register acts (a) having been complied with, they can convey no title: but if there were any doubt of the bankrupt's title, under the register de novo, on the supposi tion that it was not authorized by the register acts to be granted under the circumstances, yet the plaintiffs have a (@) 7 & 8 W. 3, c. 22; 26 Geo. 3, c. 60, and 34 Geo. 3, c. 68. good 1805. Moss against MILLS. [148] good title under the prior certificate of registry, which was in fact indorsed to Kirkpatrick by Twemlow and M' Dowal, and Another, on the 24th of June, 1802, after the time when it bears date; Assignees, &c. for it was decided, in Moss and others, assignees c Kirkpatrick v. Charnock (b), That no time was prescribed by the register acts for complying with the requisites of them; but the requisites, when complied with, would relate to the transfer, unless where any other adverse title intervened. [Le Blanc, J. Here the indorsement was made upon a cancelled instrument, which differs this from the former ease.] It was only cancelled on being delivered up, in order to get a register de novo; and, therefore, if the register de novo were not regularly granted, the former register was improperly cancelled; and is still the subsisting legal register in point of law. Beckrow's case (c), Nelthorpe v. Dorrington (d), and Leech v. Leech (e). [Lawrence, J. There is no doubt that, if an estate vest in a person by deed, the cancelling of the deed, though it may create a difficulty of proving the title, yet cannot divest the estate. Loid Ellenborough referred to Woodward v. Aston (f), S. P.] This is stronger than the case of a private instrument, improperly or mistakenly cancelled: it is a public document, required for the benefit of the kingdom; and though the commissioners might tear off the seal, they could not, strictly speaking, cancel it; or if it were once cancelled, the parties have, by their subsequent indorsement, set it up again. Kirkpatrick had then an incomplete title before his bankruptcy, which was perfected afterwards; and there is no intervening adverse title as to him; for all the parties claim through him. Hullock, contra, admitted, That the defendants had no [149] legal title; but contended, that the plaintiffs had none. The register de novo, granted to Kirkpatrick, was without any authority; and at the time of the indorsement of the prior cancelled certificate of registry to him, he had neither legal nor equitable title to the ship. No title passes by a bill of sale of a ship to the vendee, till the requisites of the acts are complied with. [The Court seemed to take that for granted; (c) Hetl. 138. (d) 2 Lev. 113. (b) 2 East, 399. (e) 2 Chan. Rep. Ico, and vide ante, 86, Roe dem, Earl of Berkeley v. The Archbishop of York. (S) 1 Yeatr. 296. and 1805. Moss and Another, Assignees, &c. against MILLI. and also, that no title passed to Kirkpatrick by the register de novo granted to him.] Then the title could not have relation back to the bill of sale of the 6th of July, 1799, by the indorsement on the certificate of the prior register, so long as three years afterwards, viz. in June 1802. No time being fixed by the statutes, within which the requisites must be complied with, the general rule of law applies, that the acts required must be performed within a reasonable time; that is, after the return of the ship to port. The policy of the law requires that they should, in order that the public may know who is the real owner of the ship, and that foreigners may not be covertly navigating a British ship with British privileges. The construction of these acts, says Lord C. J. Eyre, in Capadose v. Codnor (a), which are the bulwarks of the commerce of this country, and the great tower of our naval strength, "must be made on a full consideration of their letter and spirit, taken together. If it were shewn to be essential to a compliance with the spirit of the statutes, that the indorsement should be recited as a part of the certificate, that would go far to establish the necessity of such a recital." So here the first register act, 7 & 8 W. 3, c. 22, s. 21 (which only authorizes a registry de novo upon any transfer of property in the ship to another port) requires that, upon any alteration of property in the same port," such sale [150] shall be acknowledged by indorsement on the certificate of register, &c. in order to prove that the entire property in such ship remains to some of the subjects of England," &c. The stat. 26 Geo. 3, c. 60, s. 16, requires various other particulars to be indorsed also on the certificate, for the same purpose; and this is confirmed by stat. 34 Geo. 3, c. 68, s. 15, &c. which annuls any transfers made without the several requisites being complied with; one of which, required by the 20 Geo. 3, is the residence as well as the names of the witnesses to the indorsement: a provision which necessarily points to an immediate compliance, and would be rendered nugatory by being done three years afterwards: and s. 16 of the 34 Geo. 3, expressly provides, That where the vessel shall be at sea, or absent from her port when any alteration in the property is made, so that an indorsement of the cer (a) 1 Bos. & Pull. 485. tificate 1805. Moss tificate cannot be immediately made, certain other checks shall be observed; and the indorsement shall be made within and Another, ten days after the ship's return to port. The same inference Assignees, &c. arises from the 17th section. At any rate, three years must against MILLS. be too long an interval between the bill of sale and such indorsement. The case of Moss v. Charnock only decided, that no time being expressly limited for making the indorsement, it could not avail by relation back to invalidate intervening rights; and that in no event could the property pass out of the bankrupt till the requisites of the acts were complied with. Whatever time, therefore, had intervened, were it more or less, the decision must have been the same. 2dly, It was the manifest intention of the legislature, that the indorsement, whenever made, should be made upon a subsisting operative certificate of registry, in the proper cus[151] tody where the law requires it to be: but this had been cancelled three years before, and was not in its proper place, or acted upon at the time. An indorsement on such an instrument, having no publicity at the time, would plainly defeat the intention of the legislature in requiring it. Again: the 15th sect. of the 34 Geo. 3, c. 68, requires a copy of the indorsement to be delivered to the person authorized to make registry, without which the sale is declared void: and no such copy was given. [Littledale, contra, observed, That the officer of the customs in London had the original certificate and indorsement thereon delivered to him when the register de novo was granted; and therefore there was no need of a copy.] If the register de novo granted to Kirkpatrick be void, as is now admitted, things stand in their original situation; and then the officer at Liverpool, where the ship's home was, and not the officer in London, was the proper person authorized to make registry; and with whom a copy of the indorsement, or at least the original, should have been deposited. The want of such a copy then avoids the transfer of a ship in port, under the 15th section, in like manner as it was holden to avoid the transfer of a ship at sea, under the 16th section, in Heath v. Hubbard (a). Littledule in reply. As a time is limited by the statutes for certain acts in some cases, and not in others, it must be (a) 4 East, 110. 1 H 1 taken |