Bovill now moved to set aside the nonsuit and for a The learned Judge was wrong in holding that there was no evidence of the plaintiffs' title. By the registry of the ship in the name of the bankrupt on the 5th of August, and by the operation of the 43rd section of the Merchant Shipping Act, 1854 (1), the bankrupt, as registered owner, "acquired power absolutely to dispose of the ship," and became to all intents the owner, notwithstanding any equity that might have previously existed or be then subsisting in respect of the mortgage. Inasmuch as after such registration he did not execute any transfer to the defendants, the registration of the previous mortgage was wholly inoperative. Therefore, on his bankruptcy, the property in the ship passed to the plaintiffs, his assignees. (WATSON, B.: By section 43 the bankrupt became owner "subject to any rights or powers appearing by the register book to be vested in any other party:" that is, subject to the mortgage which, when the registry was completed, appeared on the register.) The bankrupt's title was complete by the registry on the 5th. On that day he might have sold the ship to any person. After his title was completed he could only dispose of the ship in the manner pointed out by the 55th section of the Act (2). In Coombs v. Mansfield (3) it was held that where a mortgagee of a ship with notice of a prior equitable mortgage, registers, the prior equitable mortgagee is postponed to him. (POLLOCK, C. B.: In that case the equitable mortgage did not appear on the *register itself. Where the ship is still incomplete, a mere congeries of timbers, the owners may sell or mortgage her without registering. CHANNELL, B.: Looking at the 43rd section it does not appear that the registered owner is to be taken to be the sole owner.) The object and policy of the Act is to make the register conclusive evidence of ownership. The effect is, that if there has been a registration the only means of acquiring a title is by transfer from the registered owner. Secondly, the transfer is insufficient to pass the property in the ship which was registered. The City of Bruxelles was mortgaged to the defendants. The City of Brussels was the ship registered. (POLLOCK, C. B.: Before registration an unfinished ship need not be called by any name. (1) See now s. 56 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60). (2) See now s. 24 of the Merchant Shipping Act, 1894. (3) 3 Drew. 193. BELL v. BANK OF LONDON. [*733] WATSON, B.: The registration of the bill of sale accords with the registry of the ship.) POLLOCK, C. B.: We are not bound by this Act to adopt the construction suggested by Mr. Bovill, which would work great injustice. It is said that such construction is according to the policy of the Legislature. Now I can understand public policy, but not the policy of an Act of Parliament, beyond what the Legislature has said in the Act. The next objection is that the name of the vessel on the registry is not the same as that in the mortgage. But Bruxelles and Brussels are substantially the same, and it is not necessary to give an opinion as to what would have been the effect if the names had been clearly different. The mortgage is entered on the register as a mortgage of the City of Brussels; it was the mortgage of that vessel under the name of the City of Bruxelles. BRAMWELL, B.: As to the first point, the objection is that when a ship is registered the property can only pass by bill of sale duly registered, and that, if no bill of sale is made and registered subsequently to the registry of *the ship, the property remains in the registered owner. I do not agree to that. If prior to registration the owner has executed an instrument which, if executed after registration, would pass his interest, and that is registered, it is sufficient. As to the name, the registry is right, and, as the mortgage was made before registration, it matters not by what name the vessel is described in it. WATSON, B.: The facts are simply these. A ship not then finished was mortgaged by the builder in that state. The builder being owner afterwards registered the ship as owner, and then the mortgagee, in order to complete his title, registered the mortgage to himself. That will appear to be the proper mode of proceeding if the 43rd section is compared with sections 58, 60, 66, 67, 70 and 72. The 43rd section provides that the registered owner shall have power to dispose of the ship, "subject to any rights and powers appearing by the register book to be vested in any other party;" that is to say, in the present instance, to the right of the mortgagee. As to the name, there is really no difficulty in consequence of the name in the mortgage differing from that on the register, because the identity of the thing is not doubtful: the two words are the same name spelt in different ways. CHANNELL, B.: I agree that there ought to be no rule. It is not necessary to give any opinion as to what would have been the effect of a sale by the bankrupt after the registration of the ship and before the registration of the mortgage. The question is whether the assignees under his bankruptcy are entitled to it. The answer to that is, that the mortgage, having been registered before the bankruptcy, is not invalid, though it was executed before the registration of the ship. LAFONE v. SMITH (1). Rule refused. (3 H. & N. 735—737; S. C. 28 L. J. Ex. 33; 4 Jur. N. S. 1064; 7 W. R. 13.) To an action for libel in a newspaper, the defendant pleaded, under the Libel Act, 1843 (6 & 7 Vict. c. 96), s. 2, that the libel was inserted without malice and without gross negligence, and that he inserted a full apology: and he paid 40s. into Court. The apology was inserted in small type amongst the notices to correspondents. The jury found that the apology was sufficient in its terms but that the type should have been larger, and that the apology should have been inserted in a more prominent part of the newspaper: that the 40s. paid into Court was sufficient to cover the actual damage: that there was no malice and no positive negligence: Held, that on this finding the plaintiff was entitled to a verdict with nominal damages. CASE for a libel, published in a newspaper called The Liverpool Mercury, charging the plaintiff with drunkenness. Plea. That the libel complained of was inserted in a public newspaper, and that it was inserted in such newspaper by the defendants without actual malice and without gross negligence, to wit, in the publication of a bonâ fide report of the proceedings at the election of a town councillor, at Vauxhall Road in the borough of Liverpool, in which a person whom the reporter of the said newspaper bonâ fide, but erroneously, believed to be the plaintiff took part: that before the commencement of the action the defendants inserted in the number of the said newspaper, published on the day after the publication of the said libel, a full apology for the said libel, and the defendants now bring into Court here 40s., by way of amends for the injury sustained by the plaintiff by the publication of such libel; and the defendants say that the said sum is sufficient to satisfy the plaintiff's claim in respect of the matter pleaded to. Replication. The plaintiff denies the whole of the defendants' plea. At the trial before Martin, B., at the last Liverpool Assizes, it appeared that an apology was inserted in very small type amongst the notices to correspondents in the paper of the day following the publication of the libel. The plaintiff stated (1) See Lafone v. Smith, 4 H. & N. 158. LAFONE v. SMITH. [ 736 ] [ *737 ] that he had looked for it but could not find it. Other witnesses stated that they had seen the libel but not the apology. The defendants proved that the report was correct except as to the person, some other person having been mistaken by the reporter for the plaintiff. The jury found that the apology was sufficient in its terms but that the type should have been larger, and that the apology should have been inserted in a more prominent part of the paper. They also found that the 40s. paid into Court was sufficient to cover the damage; and that there was neither actual malice nor positive negligence. The learned Judge directed a verdict to be entered for the plaintiff with 1s. damages, but reserved to the defendants leave to move to enter the verdict for them or to strike out the entry of damages. Atherton now moved accordingly. POLLOCK, C. B.: There will be no rule. An apology means the insertion of something which may operate as an apology. Inserting an expression of regret in small type, suitable only to a notice to correspondents, amounts to this, that the defendant did not insert an apology. BRAMWELL, B.: I am of the same opinion. Inserting an apology means effectually inserting it; not so that people would not be likely to see it; but in such a manner as to counteract as far as possible the mischief done by the libel. Here the jury found that the type should have been larger, and the apology inserted in a more prominent part of the paper. Now, if this is a question of fact, I am not dissatisfied with the verdict. If it is a question of law, I hold that when an apology, instead of being put in a part of the paper addressed to the public at large, is inserted amongst notices addressed only to particular correspondents, where ordinary readers of news would not see it, it is not sufficient. After such a mistake as that in the present case, it was the duty of the defendants to have inserted the apology in the most conspicuous manner. WATSON, B.: The apology ought to have been inserted in such a manner as to attract public attention to it. The jury found that it was not put in a proper place. One would think that the right place would be at the head of the local intelligence. In ordinary cases people do not trouble themselves to read notices to correspondents. CHANNELL, B.: The plaintiff was entitled to damages for the publication of the libel unless his case was answered by the plea. Now the effect of the finding is, that a material allegation in the plea, viz., as to the insertion of an apology, was not proved. The plea being disproved, the plaintiff remains unanswered, and was therefore entitled to have the verdict entered according to the direction of the learned Judge. EASTWOOD v. BAIN. LAFONE v. SMITH. Rule refused. 1858. Nov. 12. (3 H. & N. 738–743; S. C. 28 L. J. Ex. 74 ; 7 W. R. 90.) DECLARATION. The first count stated that one J. A. Scott, on the 22nd of July, 1857, by his bill of exchange, now overdue, directed to the defendants under the name, style and description of the Royal Surrey Gardens Company, Limited, required the defendants to pay to his order 500l. two months after date, and the defendants, under the said name, style and description, by one W. Ellis their agent in that behalf, accepted the said bill: that J. A. Scott indorsed to Pritchard, and Pritchard to the plaintiffs; but that the defendants did not pay the same. Second count: That the defendants, assuming to be and acting as directors of a Company by them called the Royal Surrey Gardens Company, Limited, falsely pretended that they had authority on behalf of the said Company to accept, and to order the said W. Ellis (assuming to be and acting as secretary of the said Company) to accept, the said bill on behalf of the said Company; which the said W. Ellis, assuming and acting as aforesaid, then did; whereby the plaintiffs, relying on the said acceptance, were induced to, and did, believe that the same was duly authorized by the said Company, and did then receive and take the said bill so indorsed to them as aforesaid for and in respect of certain value by them to the said Pritchard given; whereas in fact the defendants had not authority to accept, or to order the said W. Ellis 61 R.R.-VOL. CXVII. [ 738 ] |