arrangement between the parties, and that M'Calman and his firm had become bankrupt.

Mr. Rolt, Q.C., and Mr. W. F. Robinson, for the plaintiff, contended, that he was entitled to the net proceeds of the sale of the ship, [and that the Court had now the same jurisdiction to interfere on behalf of the equitable owner of shares in a ship registered in the name of another person as it had in the case of stock. Having been sold by consent, he was now entitled to the net proceeds of the sale of the ship].

Mr. Daniel, Q.C., and Mr. C. T. Simpson, for the defendant Dickinson, [contended, that the Court could not look behind the register. In this respect, notwithstanding the express repeal of the earlier navigation laws, by the Act 17 & 18 Vict. c. 120, the policy of those laws, as explained by Lord ELDON in Curtis v. Perry (1), remained unaltered, and that courts of equity had no jurisdiction to interfere with the title of the registered owner, though acquired under the grossest circumstances of fraud: Ex parte Yallop (2); and that, in any view of the case, the Court would consider the transaction as a valid sale for 1,300l., part of that sum (9001.) having been paid on account of the defendant Dickinson, or settled in account between him and the plaintiff's agents, Wilson, Brown & Co., and the balance only (400l.) remaining due. And upon payment of that balance, the defendant would be entitled to the proceeds of the sale of the ship].

Mr. Amphlett, Q.C., appeared for the assignees in bankruptcy of M'Calman.

Mr. Robinson replied.

VICE-CHANCELLOR SIR W. PAGE WOOD:

The difficulty in this case has arisen from the circumstance that the defendant Dickinson was, in a sense at all events, the registered owner of the ship at the time when the bill was filed.

Previously to the late amendments of the law of merchant shipping by the Act of 1854, it was considered, that, by the policy of the then existing Acts of Parliament, this Court had no jurisdiction to interfere with the title of the registered owner of a ship. Whether that doctrine applies under the recent Acts of 1854 and 1855, is a question undoubtedly of great importance, but it is one which, in the view I take of this case, it will not be necessary to determine.

(1) 6 R. R. p. 34 (6 Ves. 745).

(2) 10 R. R. 24 (15 Ves. 60.

ORR

V.

DICKINSON.

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[6]

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Jan. 20.

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v.

DICKINSON

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The second part of the Act of 1854 (1), which relates to the registering of ships, contains express directions that certificates of sale should be in a certain specified form (2), stating the minimum price at which the sale is to be made if it is intended to fix any such minimum (3). And here in the certificate of sale by which the plaintiff has authorised the defendant M'Calman to sell the ship, it is declared that she shall not be sold for a less sum than 1,300l.

Turning now to the 81st section of the Act, I find it enacted that certain rules shall be observed as to certificates *of sale. The second of those rules is, that "the power" of sale shall be exercised in conformity with the directions contained in the certificate. It follows that any attempt to exercise the power in a manner not in conformity with the directions contained in the certificate, would be ultrà vires, and of course would pass no interest.

Then there is a rule, which is not unimportant to observe for a different reason, to which I shall recur presently-the third rule, which provides that "no sale bonâ fide made to a purchaser for valuable consideration shall be impeached by reason. of the person by whom the power was given dying before the making of such sale."

After this I come to the eighth rule, which provides, that the registrar required to make the registry upon a sale of the ship shall retain the certificates of sale and registry, and, after having indorsed on both of such instruments an entry of the fact of a sale having taken place, shall forward the said certificates to the registrar of the port appearing on such certificates to be the former port of registry of the ship; and such lastmentioned registrar shall thereupon make a memorandum of the sale in his register book, and the registry of the ship in such book shall be considered as closed," except so far as regards certain mortgages there mentioned. And then the twelfth rule is as follows: "If no sale is made in conformity with the certificate of sale, such certificate shall be delivered to the registrar by whom the same was granted'; and such registrar shall thereupon cancel it, and enter the fact of such cancellation in the register book; and every certificate so cancelled shall be void to all intents."

Now, what happened in the case before me was this: (The VICE-CHANCELLOR then examined the evidence as *to the alleged sale to the defendant Dickinson, and the ambiguous and contradictory statements of that person as to the nature of the transaction; and resumed)

So that, although there is evidently an attempt throughout to make out something to justify the defendants' argument that it was really a sale for 1,300l., 9001. being settled in account between himself and the firm of Wilson, Brown & Co., and the balance of 4001. remaining due, it comes to this, that the defendant Dickinson never bought for 1,300l. at all. He only bought for 900l., and that was a sort of conditional purchase, by which it was understood that the ship was to be Messrs. Wilson, Brown & Co.'s, if they paid the 900l. within a given time; and that, if they did not, she was to be the property of the defendant Dickinson. And, as to what that defendant says in cross-examination, to account for 1,300l. being inserted in the certificate when 900l. only was given, viz. that "it must have been owing to some regulations of the Custom-house requiring the insertion of it," the "regulation of the Customhouse," as he calls it, is the regulation of the law, that when a man has given to another a power of attorney to sell for 1,300l. as the minimum price, the attorney is not authorised to sell for less. That the statute enacts, and every principle of common sense as well as of law requires. And I am not to be told, as I was in argument, that it is the custom of Liverpool to put a high minimum price into certificates of sale, in order that it may operate as a sort of puff for the ship, and without any intention of binding the attorney to the terms of the power under which he professes to act. It is plain, on the evidence of Dickinson himself, that the bill of sale, though purporting upon the face of it to be a bill of sale for 1,300l., was originally a bill of sale for 900l., and was not intended by either of the parties to it to be a bill of sale for any larger sum; that the sale was effected for that sum and no more, and that no contract ever existed for a sale at a higher sum than 9001.; consequently, there has never been, in the words of the second rule of the 81st section, "an exercise of the power in conformity with the directions contained in the certificate;" and therefore the bill of sale, though purporting upon the face of it to be a perfectly valid instrument, so that the registrar would be obliged to treat it as such, was in fact a nullity, and could not, even at law, pass any interest in the ship. The person named in the certificate as the party by whom the power was to be exercised, being simply an attorney, and being only competent to pass the vessel for 1,300l., his signing a bill of sale of the vessel for 9001. had no more effect than if anybody now sitting. in this Court had signed the instrument in his stead.

The bill of sale, however, purported upon the face of it to create a valid title in the defendant Dickinson, so that the

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DICKINSON.

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registrar was bound to act upon it; and the registrar, having so acted upon it, and registered the ship in his name in conformity with the bill of sale, can it be said, that, by virtue of such registration, the defendant Dickinson has acquired the legal title? If it can, the question, whether this Court has now jurisdiction to interfere with the legal title of the registered owner of a ship would be fairly raised, and would now call for a decision. It seems to me, for the reasons I am about to state, that, under the circumstances of this case, the defendant Dickinson cannot be said to have acquired the legal title to the ship; so that the question of jurisdiction is still open to dis

cussion.

That question is one which, whenever it has to be decided, will require much grave consideration. I am by no means convinced, that the argument deduced from the *circumstance of the Act of 1855 (1) providing that shares in ships registered under the Act of 1854 shall be deemed to be included in the word "stock," as defined by the Trustee Act, 1850, and that the provisions of the latter Act shall be applicable to such shares (2); and from the recognition, throughout the Act of 1854, of the existence of trusts in certain cases-is of great urgency. Under the previous Acts, down to the 8 & 9 Vict. c. 89, there were trusts subsisting, as was pointed out in the argument on behalf of the defendant,-trusts, for instance, in respect of property devolving on the next of kin through the medium of an administrator, and trusts in respect of ships allowed to be registered in the names of Joint-stock Companies and in the names of trustees for such Companies, and the necessity of providing for such equitable interests might be alleged as accounting for several of the provisions to which I was referred in the Acts of 1854 and 1855; while, on the other hand, there are other provisions in these Acts which will require more deliberate consideration, whenever the question has to be determined.

In this case, however, the question, as it seems to me, does not arise; for here, as I have said, the defendant Dickinson, though registered as sole owner, does not appear to me to have acquired the legal title to the ship. I will now state my reasons for coming to this conclusion.

It is clear from the rules in the 81st section of the Act of 1854, as to certificates of sale, that the Legislature did not contemplate that the mere fact of the registration of a bill of sale, however valid upon the face of it, would, of itself, give an absolute title at law to the party in whose name the registration should be effected. Had they done so, the third *rule, (2) Id. s. 10.

(1) 18 & 19 Vict. c. 91.

which provides, as I have already mentioned, that "no sale bonâ fide made to a purchaser for valuable consideration, shall be impeached by reason of the person by whom the power was given dying before the making of such sale," would have been superfluous. The insertion of such a rule shows that the Legislature contemplated the possibility of a registration which should not be conclusive as to the legal title; that the mere fact of registration would not give a legal title, where the bill of sale, although good upon the face of it, was in fact invalid at the time of its being registered; and that, in speaking of registration of bills of sale, the Legislature intended only such bills of sale as were good and valid, not merely upon the face of them, but actually.

That being so, I am entitled to look behind the register, to ascertain the validity of the bill of sale; and when the Act provides, as it does by the second rule as to certificates of sale, that the power shall be exercised in conformity with the directions contained in the certificate, I am at liberty to inquire whether the power has in fact been so exercised; and in this case I find that it has not. It appears to me that the mere writing 1,300l. in the bill of sale, in order to make it appear to be an execution of the power in conformity with the directions. contained in the certificate, which it was not, can have no more effect than if the attorney had forged the certificate of sale, and, having executed a bill of sale in conformity with the forged certificate, had by that means got the ship upon the register. And although I was told in argument that a case of that description has actually occurred, in which it was much doubted whether, the ship being once registered, the remedy must not be against the forger, I know of no principle of national policy which can require that registration shall give effect to that which is in itself *a nullity; and that when the Legislature has required the power to be exercised in conformity with the directions of the owner as contained in the certificate, a sale not in conformity with these directions, but in violation of them, can by any amount of registration have the effect of passing the right to the ship. There would be no point at which to stop, if the policy of the law required that registration should have such efficacy. It would be in the power of a registrar at any port to register all ships according to his own fancy, or for any bribe that might be given him by any person whatever.

I have therefore come to the conclusion, that the power not having been exercised in conformity with the directions contained in the certificate, no valid bill of sale has ever been

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2. DICKINSON,

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