assigned by the same deed, the deed was by the terms of the statute become equally void as to both. The Lord Chancellor, however, seems to have been clearly of opinion, that an assignment of freight was not within the provisions of these statutes, and that, if the assignment

this case had been made by a separate instrument, it would certainly have been good; and the inclination of his opinion was, that the bill of sale, though void as to the ship, of which it purported to make a legal transfer, might be a valid agreement in a court of equity with respect to the freight. This point, however, did not receive a final decision, for the reason before given.

34. The opinion of the Lord Chancellor in the case last quoted, upon the validity of the assignment of the freight, notwithstanding the bill of sale was become void as to the ship, supposing such an assignment not to be within the provisions of the Register Acts, appears to have been confirmed by a decision of the Court of King's Bench (a). A bill of sale of several registered ships was made by way of mortgage, for securing the payment of a sum of money lent to the owner, who, by the same deed, covenanted to repay the money

on a particular day. The bill of sale did not [81] contain a recital of any of the certificates of registry. The money not being repaid at the day, the lender brought an action of covenant upon the deed. It was objected, that by force of the Act of Parliament (b), the deed was wholly void to all purposes, and, consequently, that an action of covenant grounded upon it could not be sustained, whatever other remedy the lend er might have to recover his money but the Court thought the object of the Legislature would be sufficient

(a) Kerrison v. Cole, 8 East. 231. (b) 26 Geo. 3. c. 60. s. 17.

ly attained, and the words of the statute satisfied, by considering the statute to make void so much only of the instrument, as related to the conveyance of the property in the ships, without also avoiding a distinct and collateral covenant contained in it; and therefore determined, that the action might be maintained. This determination appears also to support the opinion of the Lord Chancellor, as to the power of a court of equity to decree a sale or new conveyance, in the case then before him.

CHAPTER THE THIRD.

1.

OF PART-OWNERS.

THE several part-owners of a ship are tenants in

common with each other of their respective shares: each has a distinct, although undivided, interest in the whole; and upon the death of any one, his share goes to his own personal representatives, and does not accrue to the others by survivorship. It is proposed to consider the nature of their interest, first, with relation to each other; and, secondly, with relation to strangers.

2. FIRST. A personal chattel, vested in several distinct proprietors, cannot possibly be enjoyed advantageously by all without a common consent and agreement among them to regulate their enjoyment in case of disagreement is one of the hardest tasks of legislation; and it is not without wisdom, that the law of England in general declines to interfere in their disputes, leaving

it to themselves, either to enjoy their common property by agreement, or to suffer it to remain unenjoyed or perish by their dissention; as the best method of forcing them to a common consent for their common benefit. But of ships, "which are built to plough the sea, and not to lie by the walls," commercial nations [83] consider the actual employment as a matter, not merely of private advantage to their owners, but of public benefit to the state, and therefore have laid down certain positive rules in order to favour this employment, and to prevent the obstinacy of some of the part-owners from condemning the ship to rot in idleness. It sometimes happens, that several persons become part-owners in a ship under a fixed compact and settled agreement, among them for the employment of it, or that by common consent they delegate the management of their common concern to one of them, who by a very intelligible figure of speech is called the husband of the ship. When this is the case, nothing is left for the law of the state but to enforce the compact and agreement of the parties, according to its own mode of administering justice in analogous cases. It is only when the enjoyment of the property has not been thus settled by the parties, that it becomes necessary to inquire what mode the law. of the country has prescribed for the regulation of it. Some foreign writers (a) on maritime law have laid it down as a rule, that if a ship is in need of repair, and one part-owner is willing to repair it, and another unwilling, he who is willing may repair it at their com

(a) Straccha de Nav. Pars. 2. Num. 8. The author cites two others, who had written before him, and is as usual cited in his turn by Roccus and others, who have writ

ten after him. In the same passage he very gravely tells us, that ships often want repairs, and as gravely cites the Digest to prove his proposition.

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mon expence; and if the other will not pay his [84] quota within four months, he shall lose his share in the ship and they found their doctrine upon a passage in the Digest (b), in which the same opinion is delivered with regard to the repairs of a house. But I do not find this rule adopted in practice in any country, and in case of the poverty of the party it would be extremely cruel.

3. The ordinances of Oleron and Wisbuy are silent on this subject of disagreement among part-owners as to the employment of a ship. By the ordinance of the Hanse Towns (c), if the owners disagree as to the freighting of the ship, the most voices shall carry it, and yet the master may take money on bottomry for those who will not contribute their part to the outfit. The French ordinance (d) directs, that in all cases, which concern the common interest of the owners, the opinion of the majority in value shall be followed. The ordinance of Rotterdam (e) gives power to a majority possessed of above half the ship to let it out on freight, and to bind all the part-owners thereby, and to raise money for the outfit, either by borrowing it on bottomry, or by disbursing for the shares of the other owners, who appear unwilling to contribute after due notice. And the same ordinance (ƒ) even authorizes the [85] owners of above half the ship to sell it for the general account.

(b) Dig. 17. 2. 52. 10.

(c) Art. 59. I have followed the translation given in Malyne. The words, as given in the Us & Coutumes de la mer, are, "le plus de trois "emportera sur les autres." which Cleirac interprets to mean three more on one side than on the

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other.

(d) Liv. 2. Tit. 8. Des Proprietaires, Art. 5.

(e) Art. 172. 2 Magens 108. See also on this point Weskett on Insurance. tit. Bottomry, sect. 3 & 4.

(ƒ) Art. 171. 2 Magens 108.

4. The law of this country appears to possess an im portant advantage over all the ordinances, that have been cited; because, while it authorizes the majority in value to employ the ship "upon any probable design," it takes care to secure the interest of the dissentient minority from being lost in the employment, of which they disapprove. And for this purpose it has been the practice of the Court of Admiralty from very remote times to take a stipulation from those, who desire to send the ship on a voyage, in a sum equal to the value of the shares of those, who disapprove of the adventure, either to bring back and restore to them the ship, or to pay them the value of their shares (g). When this is done, the dissentient part-owners bear no portion of the expences of the outfit, and are not entitled to a share in the profits of the undertaking; but the ship sails wholly at the charge and risk, and for the profit of the others (h). This security may be taken upon a warrant obtained by the minority to arrest the ship; and it is incumbent on

the minority to have recourse to such proceed[86] ings, as the best means of protecting their in

terest; or, if they forbear to do so, at all events they should expressly notify their dissent to the others, and, if possible, to the merchants also, who freight the ship. For it has been decided (i), that one part-owner cannot recover damages against another by an action at law upon a charge of fraudulently and deceitfully sending the ship to foreign parts, where she was lost. And it has also been decided in the Court of Chancery, that one part-owner cannot have redress in equity against

(g) Form of such a security, Appendix No. VI.

(h) Anon. 2 Chan. Ca. 36. Trin. T 32 Car. 2. and by Holt Ch. J. in

Boson v. Sandford, Carth. 63.

(i) Graves v. Sawcer, Sir T Raym. 15. 1 Keb. 38. & 1 Lev. 29