1829. BOWEN V. Fox. Falmouth, as a magistrate, to compel the defendants to restore the certificate of registry, but the mayor refused to enacted, that in case the master of any ship or vessel, or any other person who shall have received or obtained, by any means or for any purpose whatever, the certificate of the registry thereof, (whether such master or other person shall be a part-owner or not,) shall wilfully detain and refuse to deliver up the same to the proper officers of his Majesty's customs for the purposes of such ship or vessel as occasion shall require, it may and shall be lawful to and for any owner or owners of such ship or vessel, the certificate of registry of which shall be detained and refused to be delivered up as aforesaid, to make complaint on oath against the master of the ship or vessel or other person who shall so detain and refuse to deliver up the same, of such detainer and refusal, to any justice of the peace residing near to the place where such detainer and refusal shall be in Great Britain or Ireland, or to any member of the Supreme Court of Justice or any justice of the peace in the islands of Jersey, 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 said certificate of registry is not lost or mislaid, but is wilfully detained by the said master or other person, such master or other person shall be thereof convicted, and shall forfeit and pay the sum of 100l. 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 months nor more than twelve months; and the said justice or other magistrate shall and he is hereby required to certify the aforesaid detainer, refusal and conviction to the person or persons who granted such certificate of registry for such ship or vessel, who shall, on the terms and conditions of law being complied with, make registry of such ship or vessel de novo, and grant a certificate thereof conformably to law, notifying on the back of such certificate the ground upon which such ship or vessel was so registered de novo, and if such master or other person who shall have detained and refused to deliver up such certificate of registry as aforesaid, or shall be verily believed to have detained the same, shall have absconded, so that the said warrant of the justice or other magistrate cannot be executed upon him, and proof thereof shall be made to the satisfaction of the commissioners of his Majesty's customs, it shall interfere. Shortly afterwards, Myers was brought down from London to appoint another master, to whom the defendants delivered the certificate, under an order obtained by them from the mayor; and, the vessel sailing upon her voyage, Bowen was immediately liberated from prison. He followed the vessel to Vera Cruz, and on his arrival there found that the goods had been landed by the supercargo, and that his ship had been sold by the intrusive captain, from whom no information as to the grounds of this proceeding, and no account of the produce of the sale had ever been obtained. Upon this state of facts it was contended on the part of the defendants, that the original delivery of the certificate of registry being made for a valuable consideration, the defendants acquired a lien for their advances, and for their responsibility to the tradesmen who repaired and victualled the ship; that the refusal to deliver the certificate to Benjamin Bowen was not evidence of a conversion, and that the subsequent delivery of this instrument to the master appointed by Myers, was justified by that appointment. On the part of the plaintiffs, it was answered that the statute expressly provided that the certificate of registry should never be held for any other purpose except the navigation of the ship, and that therefore no lien could be acquired; and that at all events a delivery to a person nominated as master by Myers, who was the owner of a sixtyfourth part, and who had no power to displace a master who was appointed by all the part-owners, and who himself held an eighth share of the ship, was a wrongful conversion of the certificate, which had occasioned an utter destruction of the plaintiffs' property. The learned Judge ruled, that Myers, as part-owner, had authority to appoint a master to the ship, and that the master so appointed was entitled to be lawful for the said commissioners to permit such ship or vessel to be registered de novo, or otherwise, in their discretion, to grant a license for the present use of such ship or vessel, in like manner as is 1829. BOWEN v. Fox. 1829. BOWEN บ. Fox. have the certificate of registry. His lordship told the jury, however, that if they were of opinion that the defendants had been guilty of fraud in the transaction, they should return a verdict for the plaintiffs. A verdict was found for the defendants, which Merewether, Serjt. now moved to set aside. The statute 4 Geo. 4, c. 41, s. 25, prohibits, under heavy penalties, the detention of the certificate of registry, under any pretence whatsoever, for any purpose, except the use and navigation of the vessel (a). [Lord Tenterden, C.J. Looking at the language of the statute, this clause appears to be introduced not with a view to the interest of the owners, so as to prevent other persons from obtaining a lien. The certificate is to be given up to the officer of the customs.] The object of the clause was to prevent any impediment to the sailing of the ship. [Bayley, J. Suppose the ship requires repairs, and the master says, I have no money, but I will deposit the registry as a security that I can obtain it from the owners. Here it seems to have been placed in the hands of the defendant as a security for advances. The question is, whether a party can be said wilfully to detain where he has a lien.] The preamble seems to say that he would, because he cannot hold. It supposes every refusal wilful. Lord TENTERDEN, C. J.-It does not follow that this action can be maintained. This action is founded on the common law right of property, not upon the statute; but at common law the party cannot sue for a conversion without paying what is due. He should have pursued the remedy given by the act. The officer of the customs should be required to interfere. The effect might be to make the pledge of no avail. (a) Ante, 5, (b). BAYLEY, J.—It is not necessary to give any opinion whether the owners had a right to have this certificate of registry back again. LITTLEDALE, J. and PARKE, J. concurred. 1809. BOWEN V. Fox. Rule refused. WILLIAMS v. WARING. dum at the ASSUMPSIT. The plaintiff declared as the indorsee A memoranof a promissory note, made to the plaintiff, without noticing foot of a proany place of payment. Plea, non assumpsit. At the trial, missory note indicating a before Jervis, J. at the last assizes for the county of Den- particular bigh, the note appeared to have the following memoran- place of paydum: At Messrs. B. & Co. Barbican, London." The whole of the note and memorandum was written by the defendant at the same time. It was contended that this was a variance, and that the declaration should have described with the note the note as payable at the place mentioned in the memorandum. The learned judge over-ruled the objection, but reserved the point. Campbell now moved accordingly to enter a nonsuit. The circumstance of the particular place not being contained in the body of the note is immaterial, where it is shewn that the whole was done at one and the same time. Thus in Trecothick v. Edwin (a), it was held by Lord Ellenborough that where the place of payment is printed at the foot of the note it formed part of the contract. That decision proceeded not upon any distinction between printing and writing, but upon the evidence afforded that the condition must have been there at the time the note was signed. Here the fact was proved. The contract is to be gathered from the four corners of the instrument. [Parke, (a) 1 Stark. N. P. C. 468. ment, forms no part of the contract, though shewn to be contemporaneous itself. 1829. WILLIAMS V. WARING. J. The late act (a) applies only to inland bills of exchange. Lord Tenterden, C. J. In point of practice there is a well known distinction between a place of payment inserted in the body of the note, and a place mentioned in a memorandum at the foot of a note; in the former case it is considered as forming part of the contract, but where the place has been mentioned only in a memorandum at the foot of a note, I am not aware of any inquiry as to the time at which the memorandum was made. Parke, J. The question is, what the party meant by it. Bayley, J. Exon v. Russell (b) appears to me to be in point. In that case the memorandum was on the note at the time it was signed by the defendant, which being declared upon as payable at a particular place, was held to be misdescribed.] Lord TENTERDEN, C. J.-The distinction has been so long acted upon, and the case cited by my brother Bayley is so expressly in point, that I think this Court is bound to adhere to the course which has been hitherto adopted. (a) 1 & 2 Geo. 4, c. 78. (b) 4 M. & S. 505. The ground of that decision was the opinion then held by the Court of King's Bench, that a particular place of payment designated in an acceptance or in a promissory note, formed Rule refused. no part of the contract, contrary to the doctrine held by the Court of Common Pleas, and to the ultimate decision of the House of Lords, in Rowe v. Young, 2 Brod. & B. 165. BENNETT v. SKARDON and another. Motion to set TRESPASS, quare clausum fregit. aside an award under a refer. ence at nisi prius allowed to be made after the first four days of term, where the award was liberum tenementum. At the trial, Plea, not guilty, and before Tindal, C. J. at the last assizes for the county of Devon, a verdict was taken for the plaintiff, subject to a reference to an arbitrator, who was to set out boundaries, &c. The arbitrator made his award at Plymouth, 215 miles from Lon published too late in the vacation to take the necessary proceedings before. |