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Decisions of the Superior Courts of New South Wales, 1788-1899

Lord v. Campbell [1822] NSWKR 1; [1822] NSWSupC 1

ship, title to - fieri facias

Supreme Court
Field J., 5 March 1822
Source: Sydney Gazette, 8 March 1822 [1]
 

This day the following judgement was delivered by Mr. Justice Field:
This is an action of trespass against the Provost Marshal, for taking the ship St. Michael, now lying in this port, in execution, as the property of Walter Crammond, under a writ of fieri facias, dated 21st November last, in the cause of McVitre v. Crammond. The plaintiff claims the ship as his property, under a deed of assignment executed at Hobart Town on the 2nd October last, whereby after reciting that Mr. Crammond, in consequence of certain alleged defects in the title of Messrs. Hobbs and March to the ship, had commenced legal proceedings against them to recover the consideration paid by him to them for the same, consisting partly of a grant from Governor Macquarie to Mr. Crammond of 1500 acres of land, called the South Arm, on the River Derwent; and that Mr. Crammond Ward, in either event of the siege[???], be entitled either to the land or the ship, he conveyed them both to Mr. Edward Lord, as a security for a debt of £800, and covenanted that in as much as the ship was then navigated solely by virtue of a pass from the Governor General of India, or the East India Company, and as the certificate of registry was deposited in some public office in the East Indies, or (having been either lost or [?]) had never come into the possession of Mr. Crammond, whereby a proper assignment, with the certificate of registry set forth at length therein, according to the Navigation Acts, could not be regularly prepared and executed, he did, by that deed, sell and assign to Mr. Lord all his right, title, and interest in and to the ship and its appurtenances, [?] as fully, clearly, and absolutely to all intents and purposes whatsoever, as if the said certificate for registration left in India, or lost or mislaid or not otherwise forthcoming, had been duly set forth in the deed; and as fully, freely, effectually, and absolutely, as if all the enactments of that Navigation Laws of Great Britain had been actually complied with. This deed is inscribed with the name of "Murray, Conveyancer;" and not to mention the voidness of its assignment of a grant of land, of which Mr.Crammond was not then in possession (though he recites that he had "paid" it to Messrs. Hobbs and March, and would only "recover it back" in the event of his preceding in the suit against them), yet, till that suit is decided, he was in the legal possession of the ship, and was therefore able to assign it. The question is then, whether this is a good assignment of the ship to Mr. Lord, so as to make it wrongful for the Provost Marshal to have taken and sold it as Mr. Crammond's. Before the sale by auction, the Provost Marshal was shewn the deed of assignment; and he acted under the verdict of the jury, who found that the ship was Mr Crammond's property. The verdict of a jury does not absolutely bind the Provost Marshal; that it will mitigate damages in case the goods should afterwards turn out not to be the defendant's. The question for the Court to decide is, whether the verdict was a right one. Now, it is true that a foreign built ship is not required to be registered; but there is no proof in this case that the St Michael is a foreign built ship. A foreign built ship would be of no use here. None but British built ships, or foreign ships condemned as prizes, that are British-registered, can import or export goods to and from the British colonies. The plaintiff himself has her as a registered ship. His deed of assignment sites, that her certificate of registry is deposited in some public office in the East Indies, or is lost or mislaid. This is an admission, under the plaintiff's hand and seal, that the ship ought to have a registry. Then what do the Registry Acts say? By the 26 Geo. III c. 60. every ship having a deck, or of the burthes of 15 tons, we longing to any of His Majesty's subjects in Great Britain, Guernsey, Jersey, the Isle of Man, and any of the colonies, plantations, or territories in Asia, Africa, and America, in the possession of His Majesty, shall be registered; and persons claiming property therein, must obtain a certificate of registry from the collector, or comptroller of customs in Great Britain, or from the Governor or other chief officer in Guernsey, Jersey, or in any of the said plantations. The certificate is then made a public document, always to be present with the ship, in the nature of a protection and licence; and the master of every ship which shall have procured certificate of registry is required, upon demand, to produce the same to the principal officers of every port in His Majesty's dominions, or to the British Counsul or Chief British Officer in every port in which such ship shall arrive, in order to satisfy them that she has been properly registered, under the penalty of £100. By the same Statute, upon the transfer of the property in any ship from one of His Majesty's subjects to another, in whole or in part, the certificate of the registry of the ship is to be truly and accurately recited in words at length in the bill or instrument of sale; otherwise such bill or instrument of sale to be null and void to all intents and purposes. And by the 34 Geo. 3 c. c 68, and 42 Geo. 3.c.61, no transfer, or property in contract or agreement for a transfer, of property in any ship is to be valid that any purpose either in law or equity, unless such transfer fee by bill of sale or instrument in writing containing the recital of the register in words at length.
But this deed of assignment recites that their certificate of registry is lost all mislaid. The 26 Geo. III c. 60. provides for that case. Upon oath and security by the owner, the ship is permitted to be registered de novo, and indeed it has been decided by the Court of Exchequer Chamber, that if the ship registered at one port be transferred whilst at sea, to a purchaser residing at another port, the proper mode of perfecting a transfer within the requisitions of the Registry Acts is by a registration de novo in her new port. "The identity and ownership of the vessel (says Mr.Baron Wood in that case) which are the objects of the Registry Acts are fully ascertained to the office of her new port by the production of the bill of sale, which must recite her certificate of registry, and by the delivering up of her old certificate with all the transfers of property indorsed upon it to the officer who grants a new certificate. The object of the Registry of shipping and of granting certificates and making endorsements, was not to register titles for the security of purchasers but to guard (as the first Statute expresses it), against colouring foreign ships under English names, and to furnish evidence to the officers of government that they were really English ships." 3 Taunt 177. The registration de novo has no more being made in the present case, than the old certificate of registry has been recited in the deed of assignment and delivered up to the proper officer; and for these reasons, we are of opinion that the sale to the plaintiff is void; and that the defendant was justified in taking the ship in execution as the apparent goods of Mr. Crammond and, is therefore entitled to our verdict, and that the plaintiff must be left to any remedy he may have against Mr. Crammond and under the word "covenant" in this illegal deed.

Note

[1] See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2236 (no. 511).

Published by the Division of Law, Macquarie University