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and subsequently with some alterations by 26 Geo. 3. c. 60. f. 16. A verdict was found for the Plaintiff, with liberty to the Defendant to move to set it aside and have a verdict entered the other way.
Accordingly a rule Nis for this purpose having been obtained, Adair and Le Blanc Serjts. fhewed cause, and contended that the Legislature did not mean to make void assignments of this kind where a recital of the indorsement was omitted in the deed, fince nothing to that effect appeared in the 26 Geo. 3. c.60.8.16. which regulates the form of the indorsement: that however the penalty of forfeiture enacted by 7 & 8 W. 3. may attach in cases where no indorsement is made, the fale itself is not avoided by 26 Geo. 3. probably in order that ships may be afligned by way of mortgage during the absence of the ship and master: that the subsequent statute 34 Geo. 3. c. 68. S. 15. (which could not affect this case, being passed after the transaction) makes all fales abfolutely void which are not attended by an indorsement, and that this provision would be absurd had the same thing been necessary under the 26 Geo. 3. : that the Court would not extend the words of a statute in order to make void a security for the omiffion of fomething not required by that statute to be inserted; and that the indorsement could not be deemed part of the certificate, since it had not been made so by the act.
Cockell and Shepherd Serjts. contrà argued, that the security was void for not reciting the indorsements on the certificate of registry: that the object of the Legislature in altering and extending the provisions of 7 & 8 Will. 3. was to prevent the pof
“ acknowledged by indorsement on the certi- « being a member of some British factory, “ ficate of the register before two witnesses, “ the name of Tuch town or city, and the * in order to prove that the entire property « names of the houle or copartnership in " in such thip remains to some of the fub. ~ Great Britain or Ireland, for or with “ jects of England, if any dispute ariles “ whom such person is agent or partner; « concerning the fame." The 26 Geo. 3. " and the person or persons to whom the 6.60. f. 16. referring to the above pro- property of such ship or vessel is transvision as insufficient, enacts, “ that besides “ ferred, or his or their agent shall allo de“ the indorsement required by the said “ liver a copy of such indorsement to the " recited act there shall alto be indorted on “ perton authorised to make regiitry and “ the certificate of such registry before two grant certificates of registry, who is here. “ witnesles, the town, place or parish where by required to cause an entry thereof to * all and every person or perfons to whom “ be indorsed on the oath or affidavit upon " the property in any thip or vessel or any " which the original certiticate of registry
part thereof fall be fo transferred shall “ of such Mip or vessel was obtained, and « reside; or if such person or persons « make a memorandum of it in the Book “ ufually reside in any country not under “ of Regiiters, and give notice of it to the “ His Majesty's dominion, but in some “ commissioners of the customs in Engless “ Britif factory, the name of such factory; " and Scotland." or if in any foreign town or city, not
fibility of any foreigner having a secret interest in the ship: that
1796. it was intended by the 17th section of 26 Geo. 3. c. 60. (a) that the bill of fale should correspond with the registry, and that they should be checks upon each other, which would cease to be the cafe, if the indorsement were omitted in the recital of the certificate: that the words of the 17th section include indorsement as well as certificate; for that as by the preceding section, an entry of the former is to be indorsed upon the affidavit, upon which the latter was obtained, the old certificate of registry, becomes in fact a new certificate, and ought as such to be recited in the deed of assignment ; that the 17th fection which enacts the recital of the certificate of registry, being subsequent to the other provisions relating to transfer of property, may be construed thus; 66 all these things are necessary to be done, and shall be recited :” that it is proper that the purchaser should see by the bill of fale whether the ship be liable to confiscation, which does not appear unless the indorsements as well as the certificate be recited; and that one of the objects of the act was, to provide againft fraud in future transfers. They referred to Rollefton v. Hibbert, 3 Term Rep. 406. (6)
EYRE Ch.J. This is an important point, depending upon the 6 Euf, 149. construction of particular acts of parliament, which are the bulwarks of the commerce of this country and the great tower of our naval strength. The construction of those acts must be made on a full confideration of their letter and spirit taken together. If it were shewn to be essential to a compliance with the spirit of the statutes referred to, that theindorsement should be recited as a part of the certificate, that would go far to establish the neceflity of such a recital. Let us see then how far the nature and extent of these legiữative provisions ferve to explain the clause on which this question principally turns. The object of these laws was, to confine the advantage of trading to the plantations to British subjects and to British-built fhips. In order to prevent evasions, it was necessary that the public should have the means of afcertaining without difficulty who were the owners, who were the masters of the ships, and what particular ships were employed in that trade.
(a) Which enaets, “ that when and so s other instrument of sale thereof, and that * often as the property in any ship or velfel “otherwise fuch bill of lale shall be utterly, " belongiug to any of His Majesty's sub- “ null and void to all intents and purposes." “ jećts th:ll be transferred to any other of (1) Vid. etiam Hibbert v. Rollefion, 3 Bro. “ His Majesty s subje&ts in whole or in part Cbar. Caf. 571. Rollefion v. Smith, 4 Term " the certificate of the registry of such ship Rep. 161. Cumdenv. Anderson, 5 Term Rry.
or vefsel shall he truly and accurately 709. and Westerdell v, Dale, 7 Term Rep. & recited in words at length in the bill or 306. Il 3
But the transfer of ships from one owner to another was no otherwise interesting to government than to prevent their coming into the hands of foreigners. The 7 and 8 Will. 3. c. 22. S. 17. therefore directs that the name of every thip trading to the plantations, the port to which she belongs, the master's name, the kind of built, the burthen, the place where and the time when built, and the owner's name shall be registered upon oath, together with a declaration that no foreigner directly or indirectly hath any interest therein. By the 18th section a copy of the oath upon which the regifter is made is to be delivered to the mafter of the ship by way of certificate to prevent his being interrupted by confifcation; and by the 21st section of the fame statute it is provided, that upon every alteration of property the fale thall be acknowledged by indorsement on the certificate, in order to prove, in case of dispute, that the entire property remains in British subjects. The 26 Geo. 3. c. 60. f. 16. goes beyond this, introducing a more circumftantial indorsement, and enacting that a copy of this indorsement shall be sent to the public officer authorised to grant certificates, who, after having made a memorandum of it himself, is to transmit it to the commissioners of the cuftoms. By these means the real owner must be known both at the port and the Custom-house, which is a very important step towards preventing a secret conveyance to foreigners. It is indeed provided, that upon every transfer of the property of the ship, the certificate shall be recited in the bill of fale. But if it were also necessary under this provision to recite the indorsements made on such certificate, upon every fucceffive transfer, it would be equally necessary to recite theindorsements made upon the feveralchanges of masters, as directed by 26 Geo. 3. c.60.9. 18. I am of opinion, however, that it is sufficient to send copies of the indorsements to the public offices, and that the certificate itself is enough to Thew the owner. In this case there was no indorsement on the transfer to Lempriere, and it would be peculiarly hard upon thepresent Plaintiff to hold the aflignment to him void because he did not require indorsements to be made in order to be recited. These parties chofe to run the rilk of confifcation: the certificate, fuch as it was at the time of the fale, was recited : and were it necessary to decide whether the want of indorsement upon the certificate made the affignment void, I should incline to think that it did not (a). Much has been said in favour of the policy of reciting
(a) By 34 Geo. 3. c.68. f. 15. the form' unless such indorsement be duly made, and of the indorsement is altered, and all con- a copy thereof delivered to the person aufracts for sale are now made absolutely void, thorized to grant certificates.
the indorsements, but I think it las not been fhewn that it was 1796. made neceffary by the provisions of 26 Geo. 3. c. 60.
BULLER J. It is not neceflary to decide whether the want of indorsements avoids the aflignment; for the question here is, CODxor Whether the bill of fale be insufficient because the indorsements are not recited therein ? I think that the Legillature looked to the public interest only, as appears by all the provisions of the act, and that they did not regard the purchaser. If the certificate of regiftry must be entered at the Cuftom-house with the indorsements thereon, the ship's owner must be known, and as the purchaser must have the certificate of registry recited in the bill of sale, he will be directed thereby to resort to the Custom-house for any information which he may want. If therefore the public be sufficiently safe withoutany recital of theindorfements we ought not to hold this bill of fale void, the words of the act not having expressly required their insertion. It has been assumed that no transfer takes place till the indorsement: but that is not true,
for the indorfement must always be subsequent to the transfer.
Heath J. This question turns on the 17th section of the 26 Geo. 3. c. 60. How can the indorsement be considered part of the certificate of registry? The certificate belongs to an antecedent transaction, and is complete without the indorsement, which is not like a condition on bonds or bills of exchange, where it 8 T. R. 483. alters the quality of the bill or bond, but is only evidence of a subsequent sale, though introduced in that place. We cannot go beyond the words of the act to create a case of forfeiture.
Rooke J. The 26th of Geo. 3. not having required any recital of the indorsements, we cannot extend its provisions to the prejudice of these parties.
Poftea to the Plaintiff.
The Mayor and Commonalty and Citizens of the City May ad.
of LONDON v. The Mayor and Burgesses of the Borough of Lynn Regis, commonly called King's Lynn, in the County of NORFOLK; In Error.
(In the House of Lords.) T IIS action was commenced in the Court of Common Pleas If toll be merely
claimed of the inby the present Plaintiffs in error, on the writ De ellendo dividual memquietum de theolonio.
bers of a corporation exempt
from toll, an action well lies on the writ De effendo quietum de sbcolonio in the name of the corporation. II4
The declaration began by mentioning that the corporation of
King's Lynn was summoned to answer why they required the The Mayor, &c. citizens of London to yield toll within King's Lynn. It then
alleged that the city of London was a body corporate by preThe Mayor, &c. of Lynn Ricis scription, by divers names, and for fifty years last, by the name commonly called of the Mayor, and Commonalty, and Citizens of the City of King's LYNN.
London, and that the citizens of London, amongst other liberties and privileges, had time out of mind enjoyed, and still were accustomed and ought to enjoy, the liberty and privilege that they and all their goods should be quit, and free of and from all toll, passage, laftage, and other customs, throughout England, and the King's ports, except his prisage of wines; which liberties and privileges were alleged to be confirmed by divers acts of parliament. It then recited that the King, by writ under the Great Seal, commanded the corporation of King's Lynn to permit the citizens of London to be quit of such toll, and other customs, in King's Lynn, or to fignify cause why not, but that the corporation of King's Lynn, not regarding the writ, had not signified to the King, as by the writ was commanded, and since the writ had difquieted the citizens of London, and required of five of them who were named, and of other citizens of London, toll, passage, and lastage, not being prisage of wine, of their goods within King's Lynn and its port, in contempt of the King, and to the damage of the corporation of London, of rool.
The corporation of Lynn pleaded, first, that the citizens of London had not been accustomed, and ought not to enjoy fuch liberty and privilege of being free of toll and other cuftoms, except the King's prisage; fecondly, that the five citizens named were not citizens of London, as alleged.
Issue was joined on both pleas.
In Easter Term, 1789, the cause was tried at the Bar of the Court of Common Pleas, (see i H. Bl. 206.) when a verdict was found for the corporation of London, on both issues, with one shilling damages, which damages were ftated in the record to have been remitted by the corporation of London to the corporation of King's Lynn. The judgment was, that the citizens and all their goods should be quit of yielding such toll, &c.
On this judgment a writ of error was brought in the King's Bench, and in Hilary Term, 1791, the judgment of the Common Pleas was reversed. (See 4 T. R. 130.)