1810.

BURNS against HART.

procured a new Register in his name, which could not be obtained from his Majesty's officers of the customs here, without exhibiting to them a legal transfer of the vessel, (according to the requirements of the statute) vesting the property in the defendant ; and for the want of such legal transfer made by the actual proprietor, or by some other person duly authorised by him, to execute the same in favor of the defendant, the pretended sale of the vessel is a nullity.

KERR, J. This is an action brought by an auctioneer to recover the sum of £215, being the price for which a ship called the Star, and her apparel, were sold and adjudged to the defendant, as the highest bidder at a public auction. The defence set up is, that the plaintiff has not given a bill of sale, in conformity to the requirements of the Statutes of the 26th and 34th Geo. III.

If ships were like chattel interests, transferred by delivery, the plaintiff would, by the facts found in this special verdict, be entitled to recover, having put the defendant in possession of the property adjudged. But ships, from very early times, have been like land, considered as a kind of property which must be evidenced by written documents; this was so in the french law, and is now the law of all the maritime nations of Europe. In ours various acts of Parliament have regulated, in what manner titles shall be made to this species of property, and after reading the statutes of the 26th and 34th of the King, it is difficult to conceive, how it could be supposed, that any thing like a transfer of this ship had taken place. The facts found do not conceal that Alexander Gordon is the real owner; his name appears on the face of the certificate of Registry, as the person vested with the right of property in the ship, how then could the plaintiff and John Dap

well

well Hamilton divest this property out of the owner, without a legal written authority? Could they in conformity with the seventeenth section of the 34 Geo. 3. c. 60, execute a valid indorsement on the certificate of Registry? The question is easily answered, that A cannot assign over the property of B, without a legal procuration to that effect. And whether we consider this as a transfer or contract, or agreement for transfer of property in the ship, we are equally called on, to declare it is void, and that the plaintiff cannot recover. The 15 section declares, "that "such indorsement shall, from and after the first day of January, 1795, be made in the manner and "form herein after expressed, and shall be signed by the person or persons transferring the property "of the said ship or vessel, by sale, or contract, or agreement, for sale thereof, or by some person, legally authorised for that purpose by him, her or "them, and a copy of such indorsement shall be "delivered to the person or persons legally autho"rised for that purpose by him, her or them, and a copy of such indorsement shall be delivered to the person or persons authorised to make registry, and grant certificates of Registry, otherwise such sale, "or contract or agreement for the sale thereof, shall "be utterly null and void to all intents and purpo

66

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66

ses whatsoever." Lord Eldon in Woodward, v. Larking, 3, Esp. Rep. 286, observes that the policy, of the Liverpool acts, was to have evidence of real property. Now here, the defendant could have nothing but an equitable title, which, under the letter and spirit of these acts, is no title at all. It has been urged, that this was a sale from necessity, and that the formalities of the Register Acts must, from the same cause, be dispensed with. Nothing of that kind

appears on this special verdict, and besides, where sales in a foreign port, and in extreme necessity, have been sanctioned, it has been a sale by the master, and not by a person assuming to be an authorised agent, without shewing any document which

gives

1810.

BURNS against

HART.

1810.

BURNS

against HART.

Tuesday Feb. 20th.

Where a third person promises to one of the parties to a contract that he

that promise can

gives him that power. Nor is it more difficult to answer what is stated by the plaintiff's counsel, that the vessel was sold as a huil, and not as a ship, for the transaction shews clearly, that the plaintiff set her up to public sale, for the purposes of navigation; and if it were competent to dispose of Ships, as Hulls or wrecks, without giving any other title than possession, I fear the policy and plainest provisions of the Register acts would be defeated. I am, on the whole, of opinion, that theship never was legally transferred, and that of course, judgment must be entered up for the defendant.

OAKLEY against MORROGH and DUNN.

N agreement was entered into by the plaintiff, and Robert Lester, and Robert Morrogh, mer

will assume it, chants and copartners, under the firm of Lester & only be bind- Morrogh, on the 27th of January, 1807, at Quebec, by which it was covenanted by and between them mise was made; that he, Oakley, should and would make and deliver to deliver to to the Cape Diamond Brewery at Quebec, such

ing upon him as to the person to whom the pro

and a contract

certain persons

period all the

may require

during a fixed quantity of pale and brown malt from barley, as malt that they Lester and Morrogh might require during the term of for their brew-five years, which were to commence on the 1st of be binding as October, 1807, they Lester & Morrogh finding him may be requir- with all manner of materials necessary for the making

ery,

can only

long as malt

ed for the brew

ery, and there- of the malt, save and except labour which was to be

fore the insol

persons, and their ceasing to

employ the brewery terminates the contract, and

vency of such found by Oakley, for which he should receive three pence per Winchester bushel after the delivery of the malt in a good state for brewing, and for the no damages can faithful performance of this agreement the parties on the ground bound themselves each to the other in the penal sum of £300.

be claimed up

of subsequent

non-perfor

mance.

Subsequent to this agreement Messrs. Lester & Morrogh became insolvent, and from the middle of September, 1808, ceased to employ Oakley as Maltster of the Cape Diamond Brewery, about which

time

time also Lester died and Morrogh was appointed Curator to his vacant estate.

For the non-performance of this Contract the present action was brought by Oakley against Morrogh as well in his own name as in his quality as Curator to the estate of his deceased partner, and against Dunn, who had become the sole proprietor of the Cape Diamond Brewery, for the recovery of the stipulated penalty, and also for a further sum of £300. damages, he, Dunn, having, as alleged in the declaration, assumed and taken upon himself the said contract and undertaken to do and perform all that Lester & Morrogh were thereby bound to do and perform.

To this action the defendants severally filed a defense au fonds en fait, and at the enquête in addition to the facts before stated, it appears that the assumption of the contract on the part of Dunn, if any such had taken place to the extent alleged in the declaration, rested solely on a verbal promise made by Dunn to Morrogh, in a conversation which took place be tween them, to which Oakley was not a party.

Stuart, for the plaintiff, and the Advocate General for the defendants, having been heard: the Court on this day delivered the following judgment,

SEWELL, Ch. J. The action is against Morrogh, as one of the original contracting parties and the representative of the other (Lester) and against Dunn, as assignee of the contract. It is a contract synallagmatique (or reciprocal) by which Oakley engages, "to malt such quantities of barley, as Lester & Morrogh may require, from time to time, during the term of five years," in consideration of which Morrogh for himself and Lester undertakes, "to furuish all the materials for making the said malt and to pay him three pence per bushel." And to the performance

1810.

OAKLEY against MORROGH and DUNN.

1810.

OAKLEY against MORROGH and DUNN.

formance of these engagements each party binds himself to the other in the penalty of £300.

With respect to Dunn, there is no evidence that he promised at all to assume the contract, if he did promise it was to Morrogh not to Oakley, and therefore if any action lies, it must be by Morrogh against Dunn for refusing to perform the contract as he promised. No action can lie for Oakley against Dunn because he (Oakley) was not a party to the contract as to Dunn. This is evident because Dunn had no means of compelling performance from Oakley, and consequently Oakley can have none to compel Dunn to perform the contract, and he cannot therefore support an action for the penalty for non-performance.

As to Morrogh, the question is this, is there evidence to shew that Lester and Morrogh have required any and what quantity of Barley to be malted? and admitting that by required we must understand "required for the Brewery," there is no evidence that any was required; the sole testimony on this point is Morrogh's Answer to the fifth Interrogatory on faits et articles, in which he says, "that the insolvency of Lester and Morrogh prevented them "from continuing to employ George Oakley from "September 1808, to the end of the contract," which clearly implies that none was required. Upon these grounds the action, as to both, must be dismissed.

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KERR, J. As it respects the defendant, Morrogh, this is an action of covenant, and as it regards Dunn, an action of Assumpsit. I do not see how an action can be maintained against the Defendant, Dunn, on an agreement to which he is no party. There is no privity of contract between the Plaintiff and him, and, of course, there can be no judginent rendered against him.

With respect to the Defendant, Morrogh, the con

tract