afforded by the Of the evidence the person who subsequently acted as their attorney in defending it, in which he describes them as owners; without further proof of agency. (a) registry acts. Of the general nature of the evidence in an action against ship-owners. Sed vide amend ment of the law, in this re 4. c. 41. s. 41. L. But in actions of this kind, where there is a difficulty in proving the defendants to be owners, it will always be prudent to obtain from the custom-house, by a proper subpoena and notice, the original affidavit upon which the ship's certificate of registry has been granted. The proof of the subscription of the parties to spect by 4 Geo. this affidavit will, of course, be the strongest evidence against them, upon the principle, that it is their admission upon oath that they are owners. But as there are cases under the registry acts, in which some of the owners are excused from making the affidavit required by the 26 Geo. 3. c. 60. s. 10., the fact of their ownership must, of course, (as we have above shewn) be proved by other evidence than that of the register; such, for example, as by some act of ownership; by some adoption or recognition of the register, or some quality or adjunct of possession, as, by contracting for freight, ordering repairs, or necessaries, concurring with other owners in a joint appointment of the officers of the ship, assuming a disposal of the ship or cargo, or having the ac counts rendered to them. Any or all of these acts constitute a presumptive evidence of ownership, which, of course, may be rebutted by a proof of the contrary, in which the court and jury will have to decide upon the probability of opposite statements. It is the practice to produce at the trial the original book of registers from the custom-house: but this is not necessary; for as this book is a public document, an examined copy of an entry therein will be sufficient. (b) With regard to the proof of entries in public books, it is now clearly settled, that wherever an ori ginal is of a public nature, and admissible in evidence, an examined copy will equally be admitted. It is not necessary to cite cases to confirm this position, as it stands upon two strong public reasons; the first, the security of the public document, which would, of course, be endangered by frequent carriages backwards and forwards; and, secondly, for the convenience of courts and public business. Sale of a ship LI. We have already shewn that if, upon the production of not avoided, or the register, the requisites of the acts have not been complied title deemed (a) Marshall v. Cliff, 4 Campb. 133. (b) See 4 Geo. 4. c. 41. s. 41. Copies of oaths and extracts from books of registry may now be admitted in evi dence. It is no longer, therefore, a question as to the necessity of pro ducing the originals. 1 the requisites of the registry acts, or mis takes by the with, and the omission appear to be with the public officers solely, defective, for and not with the contracting parties, it is no objection to the vest- the omission of ing of a title in the vendee. Several cases have decided, that where every thing required to be done by the owners, in order to transfer their interest, is regularly performed, the neglect of the custom-house officers, whether in London or elsewhere, will not avoid the sale, or render them liable as owners to third persons. (a) The new act makes no alteration in this respect. public officers. The registry themselves evidence of, and acts are not of need not state, the particular proportions in which partowners are in terested in a ship. We have before seen that by the registry acts a trust cannot be raised in favour of persons not named in the register, (b) and that a ship purchased by one partner, and registered in his name only, shall enure as the separate property of that partner, although the purchase and outfit should be taken from the partnership funds, and the earnings placed to the partnership account. (c) There fore, whether any one be an owner or part-owner must be deter mined by the evidence of the register, and by nothing else: but these acts do not require that the nature or proportion of the interest of the parties should be stated therein; nor does it concern the public to know in what particular union or division of interests part-owners stand related towards each other. The statutes provide for the transfer of property in a ship from one subject to another but they make no mention of the variation of interest between part-owners themselves. Therefore, in a case sent by the Lord Chancellor to the Court of King's Bench, where the names of two partners in trade appeared (amongst others) on the certifi- See 4 Geo. 4. cate of registry as owners of a ship, that court determined, that the registry acts did not prevent the shewing how, and in what proportions, the several owners were respectively entitled; and, though the partners might derive title under different conveyances, yet, if their shares were purchased with the partnership funds, and treated by them as partnership property, and the partners became bankrupts, these shares were to be considered as joint property. (d) So, likewise, upon the rule that an agent cannot dispute the title of his principal, it has been decided that where a ship originally belonged to one of two partners, and had been conveyed to B. for (a) Ratchford v. Meadows, 3 Esp. 69. Heath v. Hubbard, 4 East. 110. Bloxam v. Hubbard, 5 East. 507. Underwood. Miller, 1 Taunt. 387. Hubbard v. Johnstone, 3 Taunt. 177. Dixon v. Ewart, 3 Merivale, 325. Thompson v. Leak, 1 Madd. 39.; and Thompson v. Smith, 1 Madd. 399.4 and see ante. (b) Heath v. Hubbard, 4 East. 110. Ex parte Jones, 4 Maul. & Sel. 450. c.41. ss. 30, 31, 32. Dixon v. Ham mond, 2 Barn. and Ald. 310. When a new registry may be obtained. What vessels &c. need not be registered. securing a debt, and B. became the sole registered owner of the ship, and afterwards, as agent for both partners, insured the ship and freight, and charged them with the premiums, and, on a loss happening, received the money from the underwriters; the Court of King's Bench held, that he was accountable to the assignees of the surviving partner for the surplus, after payment of his own debt, and not to the executors of the deceased partner, to whom the ship originally belonged. (a) LII. Having shewn that the registry of itself (though neces sary to complete a title,) is not evidence of property, unless it can be confirmed by some collateral circumstance, which ascertains that such registry has been made by the authority or adoption of the persons sought to be charged as owners, it merely remains to add, that the statutes of registration have not omitted to provide for accidents and incidents, to which the certificate of registry is peculiarly exposed. Officers, therefore, are permitted to make a registry de novo, under the six following circumstances:-1. Where the old certificate has been lost or mislaid. (b) 2. Where the certificate is wilfully detained by the master. (c) 3. Where, after a transfer of part of the property in the same port, the owners of the part not transferred desire a new registry. (d) 4. Where the ship is altered in form or burthen. (e) 5. Upon any transfer of property to another port. (f) 6. And where, though the law does not require it, the parties are desirous of a new registry, upon change of property in a ship, or otherwise. (g) It may be necessary here to add, that in order to take away all possible evasion, it is expressly prohibited to change the name of a ship. (h) the LIII. We shall conclude this Chapter by repeating what, in substance at least, we have before stated, that these acts apply to merchant ships only; that is, to vessels traversing the sea, or trafficking upon the sea-coast. Vessels of war, and vessels of whatever built or character, belonging to his Majesty and the Royal Family, are not required to be registered. And lighters, barges, boats, and vessels of any built or description whatever, used solely in inland navigation, or in rivers, are not within the compass of these acts. (i) (a) 2 Barn. and Ald. 310. And see Pronting v. Hammond, 8 Taunt. 688. to the same point. (b) 26 Geo. 3. c. 60. s. 22. (c) 28 Geo. 3. c. 34. s. 14. and 34 Geo. 8. c. 68. s. 19. (d) 34 Geo. 3. c. 68. s. 21. (e) 26 Geo. 3. c. 60. s. 24. (f) 7 & 8 Will. 3. c. 22. s. 21. (g) 4 Geo. 4. c. 41. s. 40. (h) 26 Geo. 3. c. 60. s. 19. 34 Geo. 3. c. 68. s. 22.; and 4 Geo. 4. c. 41. passim. (i) 26 Geo. 3. c, 60. s. 6. See likewise Laroche v. Wakeman, Peake's N. P. p. 140. CHAPTER III. OF SEIZURES AND FORFEITURES FOR THE BREACH OF THE in the Lords of the Treasury and the Board THE penalties which have been enacted against persons guilty of violations of the navigation and registry acts have already been brought before the notice of the reader in the detail of the several statutes themselves. It will be seen that the forfeiture of the vessel, and sometimes of the cargo, is the ordinary penalty for a breach of these laws. Unquestionably these penalties are severe; and if they were exacted with a rigorous justice, which did not relax according to the circumstances of the alleged case of forfeiture and seizure, they would deserve the character of harshness. The Discretionary Legislature, however, notwithstanding its jealousy and suspicion power vested lest these salutary laws, framed for so many important interests, should be evaded or violated, has introduced an equity and discretion, established by several acts of parliament, to controul their application; thereby accommodating them to those accidents, and sometimes to those mixed cases, where an innocent intention is not altogether apparent, which are constantly occurring in a course of extensive trade and commerce. In furtherance of this principle, and with a view to relieve merchants and ship-owners, the lords of the treasury and the commissioners of customs are empowered by an act of parliament, to which we shall presently advert, to restore ships and goods seized for a violation of these laws; such power to be limited to those cases where there is no proof of fraudulent intention. of Customs in of the navigation and the registry acts, relating to shipping, trade, and commerce. Cathcart, I. One of the most able decisions in this class of cases of equit- The Betty, able constructions is that by Lord Stowell, in the case of the 1 Rob 220. Betty, Cathcart. It was the case of a British vessel, sailing without a register from circumstances of necessity. That learned judge decreed her not to be forfeited under the navigation acts. "The revenue and navigation laws," he says, "are certainly to be construed and applied with great exactness: they are framed for the security of great national interests; and the effect of such laws, N The Betty, 27 Geo.3. c.32. missioners of customs to re &c. founded on great purposes of public policy, must not be weakened by a minute tenderness to particular hardships. At the same time, it is not to be said that they are not subject to all considerations of rational equity; cases of unavoidable accident, invincible necessity, or the like, where the party could not act otherwise than he did, or has acted at least for the best, must be considered in this system of laws, just as in other systems;-laws that would not admit an equitable construction to be applied to the unavoidable misfortunes or necessities of men, or to the exercise of a fair discretion under difficulties, could not be laws franted for human societies. The court, therefore, will not deem it a departure from the duty of legal interpretation in such cases, to give a fair attention to considerations of this nature. The present case, (adverting to the case before him) is, in its general appearance, of a favourable aspect; it has no symptom of fraud; there is no attempt to impose; this alone, it is true, would not be sufficient; for it certainly may happen, that a bona fide case may incur the penalty of the law, and may become the victim of a general policy, anxious to prevent the possibilities of fraud, and therefore active in prohibiting modes of dealing which are grossly liable to abuses of that kind, though the particular transaction may not be directly impeachable." (a) The ship was directed to be restored. offi II. One of the leading acts, with respect to the vesting of a dis51 Geo. 3. c. 96. cretionary power in the commissioners of the customs to restore vessels and goods seized and forfeited for a violation of the revenue Powers of com- laws, was the 27 Geo. 3. c. 32. This most equitable and beneficial law, originally confined in its application to revenue seizures, store seizures, is extended by a subsequent statute, (b) which authorizes the commissioners of customs in England and Scotland, according to their respective jurisdictions, to order any goods whatever, or any vessels, boats, &c. that shall be seized as forfeited, either by any cer of customs, or by any other persons whatsoever, by virtue of any act of parliament made for the protection of trade, the benefit of commerce, or the encouragement and increasing of shipping and navigation, or in pursuance of any other act of parliament in any respect relating to the department of customs, to be restored to the proprietor, whether such goods, &c. shall have been seized as forfeited in Great Britain, or on the high seas, or in any other of his Majesty's dominions, settlements, or plantations. This discretion, however, is not to be exercised except evidence shall be given to (a) 1 Rob. 240. See likewise the case of the Pelican, 2 Dodson 194. (b) 51 Geo. 3. c. 96, s. 1. |