Hughes v Morris
| Jurisdiction | England & Wales |
| Judgment Date | 01 June 1852 |
| Date | 01 June 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 907
BEFORE THE LORDS JUSTICES.
S. C. 9 Hare, 636; 21 L. J. Ch. 761; 16 Jur. 603. See Maddison v. Alderson, 1883, 8 App. Cas. 479.
[349] hughes v. morris. Before the Lords Justices. May 31, June 1, 1852. [S. C. 9 Hare, 636; 21 L. J. Ch. 761; 16 Jur. 603. See MatUison v. Alderson, 1883, 8 App. Gas. 479.] A contract for the sale of shares in a British vessel, not reciting the certificate of registry, cannot be enforced in equity. This was an appeal from a decision of Vice-Chancellor Turner, dismissing a claim for the specific performance of an agreement of the sale of shares in a ship. The case is reported, 9 Hare, 636, in the Court below, where, however, the ground of the decision was different from that upon which the case was decided upon appeal. On the 8th of April 1847 forty sixty-fourths of a ship called The Virtue were put up for sale by auction by the assignees of certain bankrupts who had traded under the firm of Phillips & Co. The third condition of sale was as follows:-"The purchaser shall pay to the auctioneer, immediately after the sale, a deposit after the rate of 10 per cent, on the .amount of his or her purchase-money, and sign an agreement for the payment of the remainder to the solicitor of the vendors, at his offices in Newport aforesaid, on the 30th April next or earlier, if the purchaser is prepared, when the purchase is to be completed and the possession of the vessel given up to the purchasers." The fourth -condition of sale provided that the purchaser should be at the risk of the vessel and stores from the time of knocking down the hammer. The sixth condition was, that upon the payment of the remainder of the purchase-money, together with all other charges and dock and other dues, the purchaser should have a bill of sale of the assignee's interest in the forty sixty-fourths, together with the ship's stores, sails and .appurtenances enumerated in a schedule, but that the vendors should not be obliged to produce any documentary or other evidence of title whatsoever, other than and except the [350] certificate of registry and the bill of sale from Elizabeth Phillips of Newport to the assignees of the bankrupt. A Mr. Edwards, who was an agent for the'Plaintiff, was at the auction declared the purchaser of the forty sixty-fourths for 375, and the following memorandum was signed by him and the agents of the vendors:-" Memorandum of agreement between," &c. " That the said Henry Edwards hath this day become the purchaser of the shares and premises comprised in the annexed particulars, and subject to the conditions of sale also annexed, at the price or sum of 375, arid hath paid into the hands of T. Phelps, the vendors' solicitor, the sum of 37, 10s. as a deposit of 10 per centi. upon the said purchase-money, and in part payment thereof. And the said Henry Edwards agrees to pay the remainder of the said purchase-money at the time and place mentioned in the said conditions, and upon payment thereof the said vendors*will execute to the said Henry Edwards a transfer or bill of sale of the shares -according to the said conditions. Dated this 8th day of April 1847." 908 HUGHES V. MORRIS a DB 0. M. 4 0. 381. Disputes arose between the vendors and the purchaser, the result of which was-that the former declined completing the contract. The Vice-Chancellor dismissed the claim upon grounds depending upon the-dealings between the parties, and independently of the Ship Eegistry Act. Upon the opening of the appeal, the Lords Justices requested the counsel to argue the case first with reference to the 34th section of the Act 8 & 9 Viet. c. 89, which provides,, "that when and so often as the property in any ship or vessel, or any part thereof,, belonging to any of Her Majesty's subjects, shall after registry thereof be sold to any other or others of Her Majesty's subjects, the same [351] shall be transferred by bill of sale or other instrument in writing, containing a recital of the certificate of registry of such ship or vessel, or the principal contents thereof, otherwise such transfer shall not be valid or effectual for any purpose whatever, either in law or in equity. Provided always, that no bill of sale shall be deemed void by reason of any error in such, recital, or by the recital of any former certificate of registry instead of the existing certificate, provided the identity of the ship or vessel intended in the recital be: effectually proved thereby." The 37th section provides that no bill of sale or other instrument in writing shall. be valid and effectual to pass the property in any ship or vessel, or in any share: thereof, or for any other purpose, until such bill of sale or other instrument in writing shall have been (where the ship has been registered) produced to the collector or controller of the port at which such ship or vessel is registered, nor until such, collector and controller shall have made the prescribed entries in the book of registry. In the present case, the ship was registered, but there was no bill of sale or other instrument in writing containing any recital of the certificate of registry, nor had the; contract been produced to the collector or controller. Sir W. P. Wood and Mr. Collins, for the Appellant. The claim cannot be dismissed as being precluded by the 8 & 9 Viet. c. 89.. without laying down generally the proposition that a British vessel cannot be sold by public auction. Now, it is to be remarked, in the first place, that the present Act differs materially from the Acts on the subject which were in force before the 6 Geo. IV. c. 110 passed, and therefore that many of the cases which were decided under those former Acts would not be authorities in the existing state of the law. The 34 Geo. III. c. 68, s. 14, was as follows :-"And whereas, by an Act [352] passed iir the 26th year of His Majesty's reign, intituled ' An Act for the further Increase and Encouragement of Shipping and Navigation,' it is, amongst other things, enacted, that when and so often as the property in any ship or vessel belonging to any of His Majesty's subjects shall be transferred to any other or others of His Majesty's. subjects, in whole or in part, the certificate of the registry of such ship or vessel shall be truly and accurately recited in words at length in the bill or other instrument of sale thereof, and that otherwise such bill of sale shall be utterly null and void, to. all intents and purposes. And whereas doubts have arisen whether, by the said provision, every transfer of property in any ship or vessel is required to be made by some hill or other instrument in writing, and whether contracts or agreements for the-tranafer of such property may not be made without any instrument in writing, be it-enacted, that no transfer, contract, or agreement for transfer of property in any ship or vessel made, or intended to be made, after the 1st day of January 1795, shall be valid or effectual for any purpose whatsoever, either in law or in equity, unless such' transfer, or contract, or agreement for transfer of property in such ship or vessel shall' be made by bill of sale or instrument in writing, containing such recital as prescribed by the said recited Act." When the 6 Geo. IV. c. 110 was passed, an important alteration was made by the omission of the words "contracts and agreements." This omission was continued in the Act of Will. IV. and in the present Act, the provisions of which, therefore, seem not to have been intended to extend to mere contracts or agreements. The decisions in Biddull v. Leeder (1 B. & C. 327) and Mortimer v. Fleeming (4 B. & C. 120) shewed the inconvenience arising from the former atate of the law ; and the omission in the Act of Geo. IV. and the subsequent Acts must [353] be attributed to an alteration in the intention of the Legislature. In the last edition of Lord Tenterden's work, edited under his superintendence, that of 1827, the distinction is adverted to at page 50, thus: " Upon the subject of transfer of property it seems fit to notice a distinction between the recent and former statutes- 3DEQ.BLftO.SM. HUGHES V. MORRIS 909 A recital of tke certificate of registry is not now made necessary to the validity of an executory contract or agreement for the transfer of property, as was expressly required by the 34 Geo. III. c. 68, s. 14 ; neither is an indorsement of such a contract on the certificate now required, which was held to be necessary under that statute ; -and, by the language of the new Act, if...
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