BILL OF SALE. Goods (purchaser or mortgagee). condition as the same and every of them respectively now are and is.] IN WITNESS, &c. INVENTORY OR SCHEDULE ABOVE REFERRED TO. Delivery of possession requisite in sale of personalties. A bill of sale may be made either absolutely to a purchaser, or conditionally by way of mortgage or pledge for securing the payment of a sum of money; when conditional no delivery of the possession is requisite; but when absolutely made, actual possession of the property must be delivered to the purchaser, or the sale will be void, as against creditors; it being a general rule, in the transfer of personalty, that the possession must accompany and follow the deed; see Edwards v. Harben, 2 Durnf. and E. 587; Dutton v. Morrison, 17 Ves. 197; Steele v. Browne et al. 1 Taunt. 381; Paget et al. v. Perchard, 1 Esp. 205; Wordall v. Smith, 1 Campb. 333; but where the trustee of the separate estate of a married woman purchased effects under an execution issued against the husband it was held good, although no change of possession took place, Cross v. Glode, 2 Esp. 574; Cadogan v. Kennett, Cowp. 432; Derby v. Smith, 8 Durnf. and E. 82; Lady Arundell v. Phipps and Taunton, 10 Ves. 139; because the husband is in such case considered to be in possession simply as residing with his wife, and not as owner of the goods; and so where it is made by the sheriff under an execution, in which case the sale is notorious to all the neighbourhood, Kidd v. Rawlinson, 2 Bos. & Pul. 53; and see Joseph v. Nipam, 1 Moore, 189; but an assignment of chattels or personal interests will in all cases be valid as against the vendor himself and all claiming under him, Hawes v. Leader, Cro. Jac. 270; Shep. Touch. 66; although unaccompanied by delivery of possession, Steele v. Browne and Parry, 1 Taunt. 381. No. CLXXVIII. A Bill of Sale (1) of a Ship at Sea, by a sole Owner. Variations where the Vendor is Part Owner. (2) is by way of Mortgage. (3) Where the transfer THIS INDENTURE, made the day of , [" in the BILL OF SALE Ship (purchaser or mortgagee). year of the reign, &c. and] in the year of our Lord 18 BE (1) This bill of sale of a ship is requisite only where such ship is at sea, as the property in the ship, if in port, may be transferred by an indorsement on the certificate of registry; see post. p. 63. note, and Hubbard v. Johnstone, 3 Taunt. 220. A deposit of the documents will not alone confer even an equitable lien, Taylor v. Kinlock, 1 Starkie, 175. * And if the ship be at sea, a delivery of the grand bill of sale will be equivalent to the delivery of the ship itself, this being the only delivery of which the subject matter is capable; see Atkinson v. Maling, 2 Durnf. and E. 462; Walker v. Preswick, 2 Ves. 622; and see also Bourne v. Dodson, 1 Atk. 154.; but an indorsement of the certificate of registry must be made within ten days after the return of the ship to port, Dinon v. Awart, 3 Mer. 322. (2) It was formerly supposed that the registry acts prevented a part of a ship from being transferred, because the form of indorsement required by these acts to be observed contains the words, "all my (or our) right, share, and interest," and makes no provision for a transfer of part only; but it is now held that the legislature only meant, that the indorsement should shew what was the interest conveyed, and a sale of part only of a ship is now therefore determined to be equally valid with the sale of the whole, provided the quantity of interest actually parted with be correctly stated in the indorsement; Underwood v. Miller, 1 Taunt. 387. (3) * It has been a generally received opinion, that since the registry Conditional sale, acts there cannot be a valid mortgage or conditional sale of a ship, and or mortgage. that such mortgages are merely made upon honour (the form of the bill of sale mentioned in the act being absolute, and without any defeaz. ance), and cannot be sustained either at law or equity; but there seems to be no foundation for this opinion, which has arisen probably from the circumstance that the form of indorsement required by the act is adapted only to a total and absolute sale, and makes no provision for a transfer by way of mortgage. But as the officers of the Custom House will not permit any entry to be made but in this prescribed form, various modes have been adopted to effectuate this purpose; the mode here adopted is that recommended by Sir T. Plummer, (vide in Thompson v. Smith, 1 Madd. 412.) "The mortgage may be made TWEEN (the bargainor) of, &c. of the one part, and (the bar- whereof is master. hath been duly registered, pursuant to act of Parliament, a copy by the usual bill of sale of the ship, containing in the same instrument a defeazance or condition of re-transfer, on payment of the mortgage money. This bill of sale must contain the recital of the certificate as the act directs, and must be fully endorsed on the certificate of registry if the ship be in port, or if at sea a full copy of it must be transmitted to the Custom House. The form of endorsement will be the one prescribed by the act, but, with the addition of the defeazance to express the true nature of the contract between the parties, there is nothing in the act to prevent such an addition being made. In the subsequent forms to be observed at the Custom House the defeazance will probably not be noticed either in the entry endorsed or in the memorandum made in the book of registers, but registered as by an absolute bill of sale (but see now 6 Geo. IV. c. 110. post. p. 64), neither the mortgagor nor the mortgagee can suffer by that omission, for the statutes invalidate the transfer only in the event of the neglect of the prescribed requisites by the parties, and not for any neglect by the public offices. In the event of any dispute of the title in a court of justice, the proper evidence of title will be the original documents themselves, the mortgagor's right to call for a re-transfer will appear from the bill of sale fully indorsed on the certificate, if the ship be in port, or if at sea by a full copy transmitted to the Custom House, and I see no ground on which that right can be resisted." See more on this subject, post. "HYPOTHECATION." Also post. p. 64. notes. (1) If the bargainor be part owner only, say, "Whereas the said (bargainor) is the owner or proprietor of a part or share of and in a certain ship or vessel," &c. as above. *As to the bargainor being part owner only of the ship, it is to be noticed that by the act of 6 Geo. IV. c.110 (sec.32), it is enacted, that the property in every ship or vessel, of which there are more than one owner, shall be taken and considered as divided into 64 parts or shares; and the proportion held by each owner, shall be described in the registry as being a certain number of 64 parts or shares; and that no person shall be entitled to be registered as owner of any ship or vessel, in respect of any proportion thereof, which shall not be an integral 64th part or share of the same, except such owners be copartners, in which case the proportional interest of each need not be distinguished. And by the same act, (sec. 33), it is declared that no greater number than thirty-two persons shall be entitled to be legal owners at one and the same time, of any ship or vessel as tenants in common, or to be registered as such, except in regard to the equitable title of minors, heirs, legatees, creditors, or others, exceeding that number, duly represented by, or holding from any of the persons within the said number, registered as legal owners. Also, as to joint-stock proprictors of any ship BILL OF SALE. Ship (purchaser or mortgagee). of the certificate of which registry is as follows (that is to say) (1), "In pursuance of an act passed in the sixth year of the reign of King George the Fourth, entitled an act for the registry of British vessels, (the owner) of, &c. [describing the names, occupation and Recital of certiresidence of the subscribing owner or owners], having taken and ficate of registry. subscribed the oath, and caused sufficient security to be given as required by the said act (2)," &c. [proceeding as in the certificate of registry]. AND WHEREAS (3) the said (bargainee) hath Contract for contracted with the said (bargainor) for the absolute purchase of the said ship or vessel, with the appurtenances thereunto belonging, at or for the price or sum of £ INDENTURE WITNESSETH that, in pursuance of the said agreement, deration of the and also for and in consideration of the sum of £ NOW THIS purchase. WITNESS. That in consi of purchase money, or ships having appointed not less than three persons to be trustees of the property therein, when such trustees may be registered as owners on behalf of the company of proprietors. (1) *This recital of the certificate of registry, in substance, is essential Certificate of reto the validity of the deed, the act 6 Geo. IV. c. 110. declaring, "that gistry must be recited. when and so often as the property in any ship or vessel belonging to any of his Majesty's subjects shall be sold to any other or others of his Majesty's subjects, in whole or in part, the same shall be transferred by bill of sale or other instrument in writing, reciting the certificate of registry of such ship or vessel, or the principal contents thereof, and that otherwise such transfer shall not be valid or effectual for any purpose whatever, either at law or in equity. But it is further declared, that the bill of sale shall not be void (as it was holden to be under the former registry acts, Brewster v. Clarke, 2 Mer. 75; Thompson v. Leake, 1 Mad. 39), by reason of any error in the recital, or by the recital of any former certificate of registry, instead of the existing certificate, "provided the identity of the ship or vessel therein included be effectually proved thereby," and although the instrument be an executory agreement only for the sale of a ship, it must contain a recital of the certificate of registry. Biddell v. Leader, 1 Bar. and Cresw. 327. (2) This security is a bond given by the master and such of the owners as attend at the time of obtaining the certificate, with a penalty proportioned to the tonnage of the vessel, not to sell, lend, or in any manner dispose of the certificate, but to use it solely for the service of the ship or vessel for which it is granted; and on the return of the vessel, or its being captured or lost, to deliver up the same, if preserved, to the officer appointed by the act to receive them;-for the particular form of which, see post. "BOND." *If the transfer be by way of mortgage, say, "AND WHEREAS the (mortgagor) has agreed with the said (mortgagee) for the loan to him of the sum of £ curity of the said ship or vessel." Bond to be giwith certificate of ship's registry. ven not to part Mortgage. upon " the se Bargainor part (3) If the bargainor be part owner only, say, AND WHEREAS the said (purchaser) hath contracted with the owner. said (bargainor) for the absolute purchase of the said part or BILL OF SALE. the bargainor bargains and sells the ship. Lien for consideration. Bargainor part owner. lawful money of the United Kingdom of Great Britain and Ireland, (or as the case may be), together with all and singular the masts, sails, sail-yards, anchors, cables, standing and running rigging, ropes, cord, cannon, guns, fire-arms, gunpowder, shot, artillery, ammunition, provision, tackle, boats, oars, furniture, materials, appendages and appurtenances whatsoever, to the said ship or vessel share of him the said (bargainor), of and in the said ship or vessel, with the appurtenances thereunto belonging, at or for the price or sum of L (1) *The vendor upon the conveyance of an estate has an equitable lien for the purchase-money, if not paid; see ante, MOD. PREC. p. 124, n. (7); but in the case of a ship, he has no such lien, for if the requisites of the registry act be complied with, the title of the purchaser will be good against all the world; see Ex-parte Howton, 1 Rose, 177. So, on the other hand, should the purchaser be induced to pay his money without taking a transfer of the ship in the mode prescribed by the acts, he can have no remedy either at law or in equity, the title on the registry being conclusive; 5 T. R. 709. "For", per Lord Kenyon, "if an equitable interest in a ship could prevail in contradistinction to a legal interest, it would repeal the wise provisions of an act which has proved highly beneficial to the interests of this country." Hilbert v. Rolliston, 3 Brow. 571. and see Mastairs v. Greeispie, 11 Ves. 625. *A bill of sale of a ship should state the consideration-money paid: it is not however void, though it omit to set forth the true consideration, (nor if not stamped with an ad-valorem stamp), but the parties are liable to a penalty; Robinson et al. v. Macdonald et al. 5 Maul, and Sel. 228. (2) If the bargainor be part owner only, say, "All that one full and equal part or share, the whole into equal parts or shares being considered as divided, of and in the said good ship or vessel called the now on a voyage to whereof is master, together with one full and equal part of all and singular the masts," &c. as above. 2 |