1796. CAPADOSE V. CODNOR. and fubfequently with fome alterations by 26 Geo. 3. c. 60. f. 16. A verdict was found for the Plaintiff, with liberty to the Defendant to move to fet it afide and have a verdict entered the other way. Accordingly a rule Nifi for this purpose having been obtained, Adair and Le Blanc Serjts. fhewed caufe, and contended that the Legiflature did not mean to make void affignments 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. f. 16. which regulates the form of the indorfement: that however the penalty of forfeiture enacted by 7 & 8 W. 3. may attach in cafes where no indorsement is made, the fale itself is not avoided by 26 Geo. 3. probably in order that ships may be affigned by way of mortgage during the abfence of the fhip and mafter: that the fubfequent ftatute 34 Geo. 3. c. 68. f. 15. (which could not affect this cafe, being paffed after the transaction) makes all fales abfolutely void which are not attended by an indorsement, and that this provifion would be abfurd had the same thing been necessary under the 26 Geo. 3. that the Court would not extend the words of a ftatute in order to make void a security for the omiffion of fomething not required by that ftatute to be inferted; and that the indorfement could not be deemed part of the certificate, fince it had not been made fo by the act. Cockell and Shepherd Serjts. contrà argued, that the security was void for not reciting the indorfements 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- fibility of any foreigner having a fecret intereft in the fhip: that it was intended by the 17th fection of 26 Geo. 3. c. 60. (a) that the bill of fale fhould correfpond with the registry, and that they fhould be checks upon each other, which would ceafe to be the cafe, if the indorsement were omitted in the recital of the certificate that the words of the 17th fection include indorsement as well as certificate; for that as by the preceding fection, an entry of the former is to be indorfed upon the affidavit, upon which the latter was obtained, the old certificate of registry, becomes in fact a new certificate, and ought as fuch to be recited in the deed of affignment; that the 17th fection which enacts the recital of the certificate of registry, being fubfequent to the other provifions relating to transfer of property, may be conftrued thus;" all these things are neceffary to be done, and fhall be recited:" that it is proper that the purchaser should fee by the bill of fale whether the fhip be liable to confifcation, which does not appear unlefs the indorfements as well as the certificate be recited; and that one of the objects of the act was, to provide against fraud in future transfers. They referred to Rollefion v. Hibbert, 3 Term Rep. 406. (b) EYRE Ch. J. This is an important point, depending upon the 6 Euft, 149. conftruction of particular acts of parliament, which are the bulwarks of the commerce of this country and the great tower of our naval ftrength. The conftruction of thofe acts must be made on a full confideration of their letter and spirit taken together. If it were fhewn to be effential to a compliance with the spirit of the ftatutes referred to, that the indorfement fhould be recited as apart of the certificate, that would go far to eftablish the neceffity of fuch a recital. Let us fee then how far the nature and extent of these legillative provifions ferve to explain the claufe on which this queftion 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 evafions, it was neceffary that the public fhould have the means of afcertaining without difficulty who were the owners, who were the mafters of the fhips, and what particular fhips were employed in that trade. (a) Which enacts, "that when and fo " often as the property in any ship or veffel "belonging to any of His Majefty's fub"jects fhall be transferred to any other of "His Majefty s fubjects in whole or in part "the certificate of the registry of fuch fhip "or veffel fhall he truly and accurately "recited in words at length in the bill or "other inftrument of fale thereof, and that 113 (b) Vid. etiam Hibbert v. Rollefion, 3 Bro. Chan. Caf. 571. Rolleflon v. Smith, 4 Term Rep. 161. Camdenv. Anderson, 5 Term Rep. 709. and Wefterdell v. Dale, 7 Term Rep. 306. But 1796. CAPADOSE ย. CODNOR. But the transfer of fhips from one owner to another was no otherwife interesting to government than to prevent their coming into the hands of foreigners. The 7 and 8 Will. 3. c. 22. f. 17. therefore directs that the name of every ship trading to the plantations, the port to which the belongs, the master's name, the kind of built, the burthen, the place where and the time when built, and the owner's name fhall be registered upon oath, together with a declaration that no foreigner directly or indirectly hath any intereft therein. By the 18th fection 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 21ft fection of the fame ftatute it is provided, that upon every alteration of property the fale fhall be acknowledged by indorsement on the certificate, in order to prove, in cafe of difpute, that the entire property remains in British fubjects. The 26 Geo. 3. c. 60. f. 16. goes beyond this, introducing a more circumftantial indorfement, and enacting that a copy of this indorsement shall be fent to the public officer authorised to grant certificates, who, after having made a memorandum of it himself, is to tranfmit it to the commiffioners of the customs. By thefe means the real owner must be known both at the port and the Cuftom-house, which is a very important ftep towards preventing a fecret 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 alfo neceffary under this provifion to recite the indorsements made on fuch certificate, upon every fucceffive transfer, it would be equally neceffary to recite the indorsements made upon the feveral changes of mafters, as directed by 26 Geo. 3. c. 60. S. 18. I am of opinion, however, that it is fufficient to fend copies of the indorfements to the public offices, and that the certificate itself is enough to fhew the owner. In this cafe there was no indorsement on the transfer to Lempriere, and it would be peculiarly hard upon the prefent Plaintiff to hold the affignment to him void because he did not require indorsements to be made in order to be recited. These parties chofe to run the risk of confifcation: the certificate, fuch as it was at the time of the fale, was recited: and were it neceffary to decide whether the want of indorsement upon the certificate made the affignment void, I fhould incline to think that it did not (a). Much has been faid in favour of the policy of reciting (a) By 34 Geo. 3. c.68. f. 15. the form of the indorfement is altered, and all contracts for fale are now made absolutely void, unless fuch indorsement be duly made, and a copy thereof delivered to the person authorized to grant certificates. the the indorsements, but I think it has not been fhewn that it was made neceffary by the provisions of 26 Geo. 3. c. 60. BULLER J. It is not neceffary to decide whether the want of indorsements avoids the affignment; for the queftion here is, Whether the bill of fale be infufficient because the indorfements are not recited therein? I think that the Legislature looked to the public intereft only, as appears by all the provisions of the act, and that they did not regard the purchaser. If the certificate of registry must be entered at the Cuftom-house with the indorfements thereon, the ship's owner must be known, and as the purchafer must have the certificate of registry recited in the bill of fale, he will be directed thereby to refort to the Custom-house for any information which he may want. If therefore the public be fufficiently safe without any recital of the indorsements we ought not to hold this bill of fale void, the words of the act not having. exprefsly required their infertion. It has been affumed that no transfer takes place till the indorsement: but that is not true, for the indorsement must always be subsequent to the transfer. 1796. CAPADOSE v. CODNOR HEATH J. This question turns on the 17th fection of the 26 Geo. 3. c. 60. How can the indorsement be confidered 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 fubfequent fale, though introduced in that place. We cannot go beyond the words of the act to create a cafe of forfeiture. ROOKE J. The 26th of Geo. 3. not having required any recital of the indorsements, we cannot extend its provifions to the prejudice of these parties. Poftea to the Plaintiff. The Mayor and Commonalty and Citizens of the City May ad. THIS (In the House of Lords.) Is action was commenced in the Court of Common Pleas by the present Plaintiffs in error, on the writ De effendo quietum de theolonio. action well lies on the writ De essendo quietum de theolonio in the name of 1796. of LONDON V. The Mayor, &c. KING'S LYNN. The declaration began by mentioning that the corporation of King's Lynn was fummoned 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 preof LYNN REGIS fcription, by divers names, and for fifty years laft, by the name commonly called of the Mayor, and Commonalty, and Citizens of the City of 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 fhould be quit, and free of and from all toll, paffage, laftage, and other customs, throughout England, and the King's ports, except his prifage 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 fuch toll, and other cuftoms, in King's Lynn, or to fignify cause why not, but that the corporation of King's Lynn, not regarding the writ, had not fignified to the King, as by the writ was commanded, and fince the writ had difquieted the citizens of London, and required of five of them who were named, and of other citizens of London, toll, paffage, 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 100l. The corporation of Lynn pleaded, firft, 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 customs, except the King's prifage; fecondly, that the five citizens named were not citizens of London, as alleged. Iffue was joined on both pleas. In Eafter Term, 1789, the caufe was tried at the Bar of the Court of Common Pleas, (fee 1 H. Bl. 206.) when a verdict was found for the corporation of London, on both iffues, with one fhilling 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 fhould be quit of yielding fuch 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 reverfed. (See 4 T. R. 130.) |