justice, or any justice of the peace in the islands of Jersey, or Guernsey, or Man, or in any colony, plantation, island, or territory to his Majesty belonging in Asia, Africa, or America, or Malta, Gibraltar, or Heligoland, where such detainer and refusal shall be in any of the places last mentioned; and on such complaint the said justice or other magistrate shall and is hereby required, by warrant under his hand and seal, to cause such master or other person to be brought before him, to be examined touching such detainer and refusal; and if it shall appear to the said justice or other magistrate, on examination of the master or other person, or otherwise, that the certificate is not lost or mislaid, but is wilfully detained by the master or other person, such master or other person shall be thereof convicted, and shall forfeit and pay the sum of 1007., and on failure of payment thereof, he shall be committed to the common gaol, there to remain without bail or mainprize for such time as the said justice or other magistrate shall in his discretion deem proper, not being less than three, or more than twelve months; (a) and on the detainer being certified to the persons who granted the certificate, registry de novo may be made as before mentioned. (1)

*On the 25th section of the 4 Geo. 4, c. 41, corresponding to this, it has been considered, that where the certificate of registry has been deposited, to secure advances for the use of the ship, the holder had a sufficient lien upon it to defeat an action of trover by the owner, and doubts were expressed whether a detention of the certificate on such a claim of lien was a wilful detention, within the meaning of that Act (b). It has been determined, also, that a conviction on this section, in which the defendant was charged with not delivering up the certificate to the officers of his Majesty's customs, without stating that they were the proper officers, or the purposes for which the certificate was required by them could not be sustained (c).

*

[t 91] 15. Evidence of Affidavits, and Books of Registry.

The collector and comptroller of the customs at any port or place, and the persons acting for them respectively, shall, upon every reasonable request by any persons whatsoever, produce and exhibit for their inspection and examination any (c) Rex v. Walsh, 1 Adol. & El. 481.

(a) 3 & 4 Wm. 4, c. 55, s. 27.

(b) Bowen v. Fox, 10 B. & C. 41.

(1) It has been already stated in note to page 87, that there is no correspondent provision in our Law. See Act of 1792, ch. 45, § 13.

oath or declaration, sworn or made by any owner or proprietor, and also any registry or entry in any book of registry required by this Act to be made or kept relative to any ship, and shall, upon every reasonable request by any persons whomsoever, permit them to take a copy or copies, or an extract or extracts thereof respectively; and the copy of any such oath or declaration, register, or entry, shall, upon being proved to be a true copy thereof respectively, be allowed and received as evidence upon every trial at law, without the production of the original, and without the testimony and attendance of any collector or comptroller or other person acting for them respectively, in all cases, as fully and to all intents and purposes, as such original, if produced, could or might legally be admitted or received in evidence (d).

Wherever the title to the ship comes strictly and properly into question, no claim can be received in opposition to the modes of conveyance required by the statutes. But there are many cases in which the possession of property, and acts of ownership exercised upon it, furnish presumptive evidence of a title to it; and some also, in which the possession alone is sufficient to maintain an action, although the legal title may be outstanding in another.

And it has been held that a British ship does not, as to these points, differ from any other sort of property (e). (1)

Thus, in an action (ƒ) on a policy of insurance effected upon the ship Chesterfield, while absent on a foreign voyage, wherein the interest in the ship was alleged to be in Robertson and Walker, and in which it became a question, whether that allegation was sustained upon the evidence given in e cause, the learned Chief Justice of the King's Bench (Lord Ellenborough), in delivering the opinion of the Court on this

(d) 3 & 4 Wm. 4, c. 55, s. 40.

(e) Ex parte Deene, in Admiralty Court, against an unregistered partowner, 1 Dodson, 290.

(f) Robertson and another v. French,

4 East, 130. And see to the same effect, Thomas and others v. Foyle, 5 Esp. N. P. C. 88; Rickman v. Carstairs, 5 B. & Adol. 654.

(1) It is presumed, that the same principle exists in America. In U. States v. Furlong, (5 Wheaton, 184, 199) it was held by the Supreme Court of the U. States, that the national character of an American vessel may be established, even in the case of an Indictment for Piracy, otherwise than by the production of the ship's register; and the Court said, that property or character is a matter in pais, and so to be established. S. P. U. States v. Amedy, (11 Wheaton, R. 392, 409.) The like principle seems to result from the case of Wendover v. Hogeboom, (7 John. R. 308); Leonard v. Huntington, (15 John. R. 298); Taggard v. Loring, (16 Mass. R. 336.) And it was expressly decided in U. States v. Jones, (3 Wash. Cir. R. 209) that to prove property in a vessel, other evidence than the register might be given in evidence, such as acts of ownership, and the like. Wharton's Dig. Shipping, A. pl. 6, S. C.

point, expressed himself as follows: "As to the first point made in this case on the part of the defendant, viz., that [92] the ownership alleged was not sufficiently †proved: it was proved by the captain (Brooks) in the ordinary way, that the owners by whom, as such, he was appointed and employed, were the persons in whom the ownership is by the declaration averred to be. And though it afterwards appeared by his answers, on cross-examination, that the ownership was derived to those persons under a bill of sale, executed by himself, as attorney to one Lawrence Williams, the former owner, it did not on that account become necessary for the plaintiffs to produce that bill of sale, or the ship's register, or to give any further proof of such their property; the mere fact of their possession as owners being sufficient prima facie evidence of ownership, without the aid of any documentary proof of title-deeds on the subject, until such further evidence shall be rendered necessary in support of the prima facie case of ownership, which they made, in consequence of the adduction of some contrary proof on the other side. No such contrary proof was, however, in this case, given on the part of the defendant. For the prior register in the name of Lawrence Williams, as owner in 1799, and a subsequent register to the same person upon a sale at the Cape, in 1802, under a decree of the Court of Vice-Admiralty, and which were given in evidence by the defendant, were perfectly consistent with a title in other persons in the mean time, agreeable to the averment in the declaration."

Again, in an action of trover brought for divers quantities. of timber, wood, and materials, it appeared at the trial that the ship Spring, with the cargo, belonging to a merchant in London, was stranded on the coast of Norfolk; he went thither and saved the cargo; and afterwards sold the vessel as she lay, being then a complete hull, to the plaintiff for 6007., which the plaintiff paid him. He sold her as a ship, but the transfer was not made in the way required by the statutes. The plaintiff employed several men for some days in endeavoring to get the ship off, and superintended their exertions, and considerable hopes of success were entertained for a time; but in the end the ship went to pieces. The plaintiff, by his agents, then endeavored to preserve the wreck; some pieces floated away and drifted on the farm of the defendant, who collected them together, broke up part in an unskilful and injurious manner, and refused to deliver them up to the plaintiff's agent, who demanded them of him. The cause was tried before Lord Chief Justice Mansfield; and the

plaintiff was nonsuited, on the ground of want of title, from the imperfection in † the mode of transferring the [† 93] property from the merchant to him. The cause was afterwards brought before the Court of Common Pleas for consideration, and after argument, the Chief Justice and the two other Judges (g) present, agreed in opinion that the plaintiff ought to have recovered. The ground of the decision was, that the plaintiff was in the actual possession, and the defendant a mere wrong doer, without any color of title; and that although the plaintiff had failed to establish a complete title on account of the want of compliance with these statutes, yet he claimed under one who had a perfect title, and who was not now contesting the matter, and he had the possession against those who wrongfully interfered without color of right; and his situation was compared to that of an agister, carrier, factor, and other bailees, whose title a mere wrong doer is not allowed by law to dispute. A new trial was accordingly directed, and the plaintiff ultimately succeeded in the cause (h).

It was the practice, for a considerable time, to produce the register from the custom-house at trials at Nisi Prius as a proof of title, and the proof was received without question or objection. In one case, indeed, Lord Ellenborough received the register as primâ facie evidence of ownership, in an action brought for stores supplied to a ship; declaring, however, that he would admit contrary evidence on the part of any of the defendants, to show that they had not assented to their names being placed on the register (i). *Nor will an entry in the register book, that a certificate of registry was granted on an affidavit of the defendant, that he was the owner, suffice for that purpose; some person who has seen the affidavit, and knows that it was made by the defendant, must be called (k).*. But this matter having in other causes been brought before the Courts at Westminster, it has been held that the register alone does not furnish even primâ facie evidence to charge a person as owner of a ship, in a suit between private individuals (1). Such an use of the register was certainly not in the contemplation of the Legislature : and it is obviously possible, although not very likely to happen, that the name of a person may †be placed [† 94]

(g) Mr. Justice Lawrence and Mr. Justice Chambre.

(h) Sutton v. Buck, 2 Taunt. 302. (i) Stokes v. Carne and others, 2 Camp. Rep. at N. P. 339.

(k) Teed v. Martin, 4 Camp. 90.

(1) Frazer v. Hopkins and another, 2 Taunt. 5; Smith v. Fuge, the younger, 3 Camp. 456; and Recusse v. Myers, Id. 475. See Rands v. Thomas, 5 M. & S. 244.

on the register without his assent. (1) A bill of sale duly and formally executed by an apparent vendor, but not accepted by the intended purchaser, will not transfer the property to him, and consequently is not evidence to charge him, unless it appears to have been accepted by him (m). Neither is the affidavit made by a third person, in order to

(m) Tinkler v. Walpole, 14 East, 226; Cooper and another v. South and others,

4 Taunt. 802.

(1) The same principle is recognized in our Law. The ship's register is not of itself evidence of the ownership of the person, in whose name it stands, when introduced in a suit against him to establish his ownership. Leonard v. Huntington, (15 John. R. 298.) But it would be otherwise, if it were shown, that he sanctioned and adopted it. Sharp v. United States Insur. Co., (14 John. R. 201.) Nor is it evidence to disprove a title in a party, because his name is not found in it; because a legal title may exist independent of such registry in a third person under our laws. (Ibid. 14 John. R. 201.) Whether it would be evidence in favor of the party, in whose name it stands, does not appear to have been directly decided in our Courts. But in Coolidge v. N. York F. & M. Ins. Company, (14 John. R. 308) it was held, that a copy of it, certified by the Collector of the port, was not evidence, because he was not authorized to grant and certify copies generally. But as the Collector is directed to make and keep a record of the registry, it may be questioned, whether the same principle does not apply, that was adopted on producing a copy of a ship's manifest in U. States v. Johnson, (4 Dall. 412) where the Court thought the copy, certified officially, was good evidence, it being the duty of the Collector "to record in books kept for that purpose all manifests." See post, page 95, 96. Act of 1792, ch. 45, § 9, § 19. Act of 1799, ch. 128, § 21.

It was decided in several cases under the old British Registry Acts, that where the names of certain persons were in the certificate of registry, this was conclusive against the legal ownership of other persons, whose names were not found therein, and who claimed a title to the ship. See Camden v. Anderson, 5 T. R. 709; Westerdell v. Dale, 7 T. R. 306; Marsh v. Robinson, 4 Esp. N. P. Rep. 98; Abbott on Shipp. (former edition); part 1, ch. 2, § 29 ; Curtis v. Perry, 6 Ves. 739; Ex parte Yallop, 15 Ves. 60, 68; Ex parte Houghton, 17 Ves. R. 251; Mestaer v. Gillespie, 11 Ves. 625. < The registry or enrollment of a vessel at the custom-house is not conclusive evidence as to her ownership, and only proves who were the owners at the time of the registry or enrollment. Bixby v. Franklin Ins. Co. 8 Pick. S6; Hatch v. Smith 5 Mass. 42; Ring v. Franklin, 2 Hall (N. Y.), 1; Colson v. Bonsey, 6 Greenl. 474; Wendover v. Hogeboom, Anthon, N. P. 120; Brooks v. Bonsey, 17 Pick. 441; Vinal v. Burrill, 16 Pick. 401; Lord v. Ferguson, 9 N. Hamp. 380; Bas v. Steele, 3 Wash. C. C. 381.

Mr. Greenleaf, in his work on Evidence, remarks, that the register "is not of itself evidence of property, except so far as it is confirmed by some auxiliary circumstance, showing that it was made by the authority or the assent of the person named in it, and who is sought to be charged as owner. Without such connecting proof, the register has been held not to be even prima facie evidence, to charge a person as owner; and even with such proof, it is not conclusive evidence of ownership; for an equitable title in one person may well consist with the documentary title at the custom-house in another. Where the question of ownership is merely incidental, the register alone has been deemed sufficient prima facie evidence. But in favor of the person claiming as owner, it is no evidence at all, being nothing more than his own declaration." 1 Greenl. Evidence, § 494; 3 Kent, (5th ed.) 150; Bas v. Steele, 3 Wash. C. C. 381; Jones v. Pitcher, 3 Stew. & Porter, 135; Ligou v. Orleans Nav. Co. 7 Martin (Lou. R.) N. S. 682; Hacker v. Young, 6 N. Hamp. 95; Starr v. Knox, 2 Conn. 215. >