is admissible to prove that the name of a party appearing as owner has been entered in the register without his authority (m), or without the authority of another person, who is the true owner (n).

$ 1119. Registration is indispensable to the active title of owner; the Court not recognising as owners those who have failed to comply with the statutory requirements (0). But action by unregistered owners to recover from their agent sums received by him is competent, because an agent may not challenge his principal's title (p).

$ 1120. Registration is not essential to the passive title of ownership; an unregistered owner being liable for sums expended upon the ship on his order, or that of any one having his authority (9).

$ 1121. There was considerable difference of opinion as to the extent to which registration under the former acts created liability for repairs or furnishings to the ship. In one case in this country where a person, registered as owner, contended that he had only a right in security, he was held liable for furnishings ordered in London by the master, who he alleged was the true owner; and it was laid down as fixed law, that a registered owner is liable for such debts (r). More recently, where Cockburn's Trustees, of whom his son Isaac was one, were registered owners of certain ships; and where Isaac and another son acquired right to the ships under an

7 S., 56; 5 Mur., 236 ; 11 S., 21, S. C., parole of such an averment was admitted. This case, however, arose under an act which did not make the entry in the register prima facie proof of ownership.

(m) Under the former registry acts, the entry in the register was not prima facie proof of ownership, when the authority was disputed; see Fraser v. Hopkins, 1809, 2 Taunt., 5–Smith v. Fuge, 1813, 3 Camp., 456—Reusse v. Meyers, 1813, ib., 475— Tinkler v. Walpole, 1811, 14 East., 226–Tead v. Martin, 1814, 4 Camp., 90.

(n) It will be a difficult question how far such proof can affect third parties.

(0) See this illustrated in regard to the former registration acts in Walker v. Pollock, 1825, 3 S., 625—Tod, &c. v. Boag, &c., 1825, 3 S., 622—See also per curiam in Scott v. Miller, supra. (p) So held under the former registry acts in Lumsden o. Allen, 1823, 2 S., 585—Dixon v. Hamond, 1819, 2 Barn. and Ald., 310. See also Walker v. Pollock, supra. (2) So held under the former registry acts in Pearse v. Turner, 1829, 7 S., 412–Ritchie v. Lang, 1829, ib.-Inglis v. Lane, 1833, 12 S., 67.

(r) Leslie v. Curtis, 1836, 14 S., 994.

9

that they obtained unconditional recal of arrestments used by creditors of the former owners, though it was pleaded by the arresters that the transference was fraudulent and collusive; Duffus and Lawson v. Mackay, 1857, 19 D., 430; and in Schultze v. Robinson and Niven, 1861, 24 D., 120, an unregistered bill of sale, executed in Prussia, was held to transfer the property in a vessel, to the effect of defeating arrestments used by creditors of the former owner. But see Bell v. Gow, 1862, 1 Macph., 183, whero an arrestment was held effectual,-although at the time the ship stood registered in name of the debtor's infant son, and not of the debtor himself,—the transfor in favour of the son having ben subsequently rivol.

arrangement with the trustees, but without being registered; on these brothers becoming bankrupt and the ships being sold under venditions in the names of the trustees, action was sustained against the trustees for furnishings which had been made on Isaac's order before the sale (8). This case was decided on the grounds that there was no proof of the trustees having ceased to be beneficially interested in the ships, and that, as the orders had been given by one who was likely to have acted for the trustees, the furnishings must be held to have been made on the credit of the trustees and not of that person individually. The general question, therefore, was not decided ; and Lord Moncreiff observed that the decisions, both in this country and in England, at one time gave more force to the registry than the Courts had recently approved of.

$ 1122. In England it was at one time held that registered ownership created liability for repairs or furnishings (1). But the later decisions (none of which have been pronounced in regard to the act of 1854) settled that the question in each case was, On whose credit were the repairs or furnishings made ? and that this the jury had to determine on the evidence before them, without being obliged to give effect to the registration, unless they believed that the furnishings were made on the credit and actual or implied authority of the person registered as owner (u). These decisions proceed on the fair principle that a person contracting on the credit of certain parties should not have action against others on whose credit he did not reckon, and who did not derive profit from the contract. The same principle seems to apply under the existing statute, with this difference, that as the register is now prima facie proof of ownership, the registered owner might have to bear the burden of proving that the furnishings were not made on his authority or credit.3

§ 1123. When any registered ship is so altered as not to corre

(8) Hay v. Cockburn's Tr., 1850, 12 D., 1298. (1) Westerdell v. Dale, 1797, 7 Durf. and East, 306—Rich v. Coe, 1777, 2 Cowp., 636—Abbot on Shipping (9th ed.), 25.

(u) Young v. Brander, 1806, 8 East, 10–M'Iver v. Humble, 1812, 16 ib., 169_Baker v. Buckle, 1822, 7 Moore, 349-Jennings v. Griffiths, 1822, 1 Ry. and Mon., 42—Curling v. Robertson, 1844, 8 Scott's New Ca., 12—Abbot on Shipping (9th ed.), 25, 26.

3 It has been held in England that the register of a ship is not conclusive evidence of the liability of the person appearing thereon as owner for the acts of the master done within the scope of his general authority. The owner of a ship, then at sea, transferred it to the defendant by absolute bill of sale (the bill of sale being, however, intended only as a collateral security for a loan), which was duly registered. The defendant was

spond with her description entered in the register, a corresponding alteration must be made on the entry in the register book, and either a new certificate of registry must be granted, or a memorandum of the alteration must be indorsed and subscribed on the old certificate. The alteration on the certificate is made by the registrar of the port where the ship is at the time of alteration, if there is such an officer there, and, if not, by the registrar of the first port having a registrar at which the ship arrives after the alteration. If the registrar who makes the alteration is not the registrar of the port of registry, he must report it to the latter officer, in order that a corresponding alteration may be made on the register book (2)

$ 1124. The registry of a ship may be transferred from one port to another on an application made in writing and subscribed by all the parties appearing on the register to be interested in her, whether as owners or mortgagees (y). In such cases the registrar of the new register enters the ship in his books, and grants a fresh certificate of registry (z).

$ 1125. If the certificate of registry of a ship has been mislaid, lost, or destroyed, a new certificate may be granted by the registrar of the port of registry. A provisional certificate may be granted by the registrar of another port at which the vessel is at the time, or which she first reaches thereafter, in those cases specified by the act where access cannot readily be had to the registrar of the port of registry (a).*

(1) 17 and 18 Vict., c. 104, X 84.

(y) Same act, % 89. (2) Same act, 2 90.

(a) Same act, % 48.

held not to have incurred liability for contracts entered into by the master while abroad, and before the return of the vessel. " It has been admitted that, in the case of a mortgagee of a vessel who takes merely the security of the ship, not intending to incur liability as owner, a mere entry by him into possession does not render him liable for the contracts of the master, made after the execution of the mortgage and before entry; because that alone does not prove an intention on the part of the mortgagee to adopt the master as his agent"; per Jervis C.-J.-Meyers v. Willis, 1855, 25 L. J. C. P., 43 ; athirmed, 1856, 2 Jur. N. S., 788. Each case must, therefore, depend on the particular circumstances which determine whether the relation of principal and agent existed between the master and the person sought to be made liable.

* By the 56th section of the 25 and 26 Vict., c. 63, it is provided, that, in any proceeding against a ship-owner in respect of loss of life, the master's list or the duplicate list of passengers shall, in the absence of proof to the contrary, be sufficient proof that the persons, in respect of whose death such proceeding is instituted, were passengers on board such ship at the time of their deaths. The 54th section limits the liability of ship-owners in the cases specified in the section.

CHAPTER VIII.-REGISTERS OF BIRTHS, DEATHS AND MARRIAGES.

I. Before the Registration Act of 1854.

$ 1126. For a long period there have been in most of the parishes throughout Scotland, registers intended for recording the births, deaths and marriages, in their respective localities. These Parish Registers were introduced in the year 1551 by a provincial council of the clergy held in Edinburgh. They were originally confined to births and marriages, or rather to baptisms and proclamations of marriage; but in the year 1574 an act of the General Assembly enjoined the readers at every kirk to preserve a catalogue of the names of the persons deceased within their parishes. The keeping of a register of " baptisms, marriages, and defuncts,” was again enjoined in 1616 in the instructions which the Lord Commissioner produced to the Assembly of that year; whereupon the reverend court passed an act ordaining inter alia, “that every minister have a perfyte and formall register, quherin he sall have registrat the particular of the baptisme of every infant within his paroch, and quho wer witnesses thereto; the tyme of the mariages of all persons within the same, and the special tyme of the buriall of every ane deceisand within thair parochin,” to be presented at their next synod assembly, under pain of suspension. In the same year, (on 10th December 1616), the Scottish Privy Council passed an enactment in similar terms, and further requiring the entries in the register to be authenticated by the subscription of the minister or reader and two of the kirk-session, in the case of marriages and births; and two persons present at the burial, in the case of deaths. This act also ordained that the register should be "repute and haldin as famous and authentic,” and that the extracts thereof, subscribed by the minister or reader, as well as the original record, should “mak faith in all and qtsomeuer judgmentis within this kingdome.” The “Directory for Public Worship,” which was ap

, proved of by act of Assembly and act of Parliament in 1645, required a register to be kept of both the proclamation and celebration of marriages; and about this time it appears that a register of baptisins also was kept in most parishes. An act of Assembly, passed in 1746, recommended and appointed kirk-sessions to have a register, in which they should record the naines of all persons dying and interred within their bounds, and the times of their

66

deaths. The subject was again brought under the notice of the General Assembly in 1810; and in 1816 that reverend body recommended "that the several presbyteries should take the steps necessary to secure the keeping of three separate registers in every parish; in one of which the names of all children and of their parents should be recorded, with the dates of their births, whether their parents belong to the Church or are Dissenters; in another, the names of all persons married, with the dates of their marriages, whether legally solemnized or not, with the specialties of any particular cases that may occur; and in the third, the names of all persons who have died, with the particular dates of their deaths, whether they have been buried in the parish burying ground or elsewhere.” This recommendation, however, seems not to have been followed by a uniform improvement in the system of registration throughout the country, although it produced reform in several instances.

$ $ 1127. These repeated regulations (none of which, it will be observed, flowed directly from the Legislature) did not secure anything like a complete system of registration. The imperfection arose from a complication of causes.

In the case of births, the registers, except in a very few parishes, contain entries only of baptisms. No record therefore appears of the birth of infants who died before being baptised, or of adult persons to whom that ordinance has not been administered; while most registers are also entirely blank as to children baptised by the dissenting clergy. In many cases, where baptisms are entered, the name of one or other of the parents is omitted; and this is still more frequently the case as to the important item of the mother's maiden name.

In general, the sex of the child is indicated by the name under which it was baptised; but this test does not appear either in regard to names which are enjoyed by both sexes, or where the first name of the child is properly a surname. Sometimes, also, a christian name, usually enjoyed by one sex, is conferred on a child of the other, especially in cases of posthumous birth. Equally deficient are the parish registers in regard to the ages of the children; and on this head they can only be regarded as showing birth at a date, which was probably not less than a fortnight, or more than a year, before baptism.

$ 1128. In like manner, the registers of marriages are blank in regard to such as were not celebrated in facie ecclesiae after regular proclamation of banns. In most instances they do not record the fact that the marriage took place, but only that intention