CHAP. III. satisfy itself that it may safely decree possession to the party seeking it. It cannot be laid down that the Court is to decline its jurisdiction in a cause of possession, on the mere averment of one of the parties that there is a conflicting claim of title. If the mere averment of title, without any examination into its foundation, would be sufficient to arrest the progress of a cause, the jurisdiction of the Court over cases of possession would be ousted altogether. It would be idle to say that the Court retained its jurisdiction, if, the moment a warrant was extracted by one party, the other was at liberty to put an end to the suit by asserting a title, resting, perhaps, on no foundation whatever. The nature of the title must be shown before it can be permitted to have the effect of arresting the cause in its progress. It must be made to appear that it is not a mere cobweb title that is set up, but that it is such as to raise a real and substantial doubt to whom the property belongs, and in that case, the Court would certainly decline to interfere as to the possession, until the title should have been determined upon by the courts in which such questions have been more usually agitated, in the modern practice of the law.* Lord Stowell has repeatedly held that it must be a very strong case of fraud, and free from all doubt and intricacy, in which he has felt authorised to disturb possession. Power to compel the delivery of the ship's register. The Court of Admiralty has also the power of ordering the restitution of the ship's register; for although, by the 34 Geo. 3. c. 68., justices of the peace are empowered to compel the delivery of such an instrument only in cases which differ from suits of possession in the Admiralty Court, such statute bears no reference to the Court of Admiralty in that parti *By Lord Stowell in the Warrior. 2 Dodson's Admiralty Reports, 290. cular, the jurisdiction of the Admiralty being of older CHAP. III. date, and of larger extent; and it is not uncommon for parties, after applications to the justices without effect, to resort to that Court for its monition. But although the Court has undoubtedly the power of compelling the master, &c., to deliver up the certificate of registry, it still proceeds with the same caution as it does when called upon to transfer the possession, where the Court has been called upon to act upon a registry; and if the history of that register has disclosed facts that may vitiate it in that character, the Court has declined interference in favour of parties, whose title to be considered registered owners is subject to doubt; it is only in clear cases that the Court would interfere, where the instrument itself, as well as the proportional shares of the parties, are free from objections; but if both are subject to objections, the Court would not lend its authority, where it may all be employed upon matters so involved in error, as to approach to the nature of absolute nullities. In the case of the Frances *, the Court refused to order the restitution of the ship's register, on the ground, that it was a case so intricate in its circumstances as to prohibit the Court from proceeding to the strong measure of changing the possession of the ship's register." "I confess, I think," said Lord Stowell in that case," that not only the confused state of the private interests here, but likewise important questions of public policy, prohibit me from proceeding;" and not taking upon himself to pronounce what sort of interests the involved transactions in that case gave to the respective parties, and considering them to be the subject of a more direct and stringent inquiry, to be applied to a formal investigation by a proper court, and not to be decided here upon a mere bye question of the possession of the register. CHAP. III. The fourth section of the 3 & 4 Vict. Court power to decide all questions of title arising in any cause of possession, &c. It has been thought fit to enter thus fully into the jurisdiction of the Admiralty Court in these cases of disputed title, for, by a recent statute*, the authority of c. 65. gives the the Court has been much extended, and particularly in this respect. The legislature also has, at the same time, thought fit to give to it other methods of proceeding, by which such cases may be more fairly and properly investigated; the Court having the power of compelling the examination of witnesses viva voce in open court, and having generally the same powers with respect to evidence as have the courts of common law, and also having authority to direct issues to be tried before the superior courts at Westminster, &c. It is enacted by the fourth section of that statute, that the Court of Admiralty shall have jurisdiction to decide all questions as to the title to, or ownership of, any ship or vessel, or the proceeds thereof remaining in the registry, arising in any cause of possession, salvage, damage, wages or bottomry, which shall be instituted in the said Court, after the passing of this act. This, therefore, more than confirms a great deal of what has been written in the preceding pages, and some part of the caution with which the Court proceeded formerly in cases of disputed title would, under the present statute, be needless; - but how much so, it is not for the author of this book to anticipate: he has thought proper to endeavour to illustrate the sage caution with which these questions of title were formerly entertained, and not to presume so far as to speculate upon how far they are affected by this important statute, but which certainly appears to give the Court of Admiralty jurisdiction in all causes of title without reference to their intricacy, where such investigation may be necessary, * 3d & 4th Victoria, c. 65., printed in the Appendix to this Treatise. and arising in any cause of possession, salvage, damage, CHAP. III. wages, or bottomry. The 45th section of the statute 6 Geo. 4. c. 110., The claims of which relates to transfers of ships by way of mortgage, mortgagees. was held by Sir C. Robinson, in the case of the Fruit Preserver*, not to make a mortgagee such an owner as to give him the benefit of the power of the Admiralty Court in a cause of possession; and in that case a warrant of arrest for the purpose of transferring the possession of a ship to the holders of a conditional transfer, to secure a debt of 400l., was refused, the Court considering it had no jurisdiction to grant a warrant of arrest to transfer possession to a mortgagee or conditional purchaser; and in the Johnt, also, the Court refused to disturb possession at the suit of a person whose title rested on a conditional assignment of the vessel, the vessel not having been reduced into possession, nor clothed with a single act of ownership. Several cases might be cited in which the Court refused to entertain questions between mortgagees and owners, holding that a mortgagee is a stranger to the jurisdiction of the Admiralty Court; and whether a mortgagee was or was not foreclosed, — whether a mortgagee was the legal or equitable owner, were held to be questions proper for the decisions of other courts. As to whether a mortgagee (although it is clear that he could not institute a suit in the Admiralty) might appear to protect his interest, appears to have been a question of some doubt: the better opinion seems to have been, that he might have appeared in a suit to protect his interest when a suit was commenced, although he had not such an interest as would entitle him to initiate a suit. Be that as it may, by a recent statute ‡ extending the jurisdiction * 2 Haggard's Admiralty Reports, 181. † Ibid., 305. By the third section of the 3 & 4 Vict., whenever a vessel is arrested, and the pro ceeds brought into the Registry, the Court to have jurisdiction over claims of mortgagees. Over the freight as well as the ship. CHAP. III. of the Admiralty Court, such doubts are entirely removed, and such opinion confirmed; for now, when any ship is under arrest by process from the Admiralty, or when the proceeds have been paid into the registry of the Court, it has a full jurisdiction to take cognizance of all claims and causes of action of any person in respect of any mortgage of such ship, and to decide upon any suit instituted by any such person in respect of any such claim or cause of action. This statute appears, therefore, to have obviated all difficulties which were considered formerly to have existed as to the title to the ship by mortgage in the Admiralty Court; and it has been held that, incidentally, the Court has the same power as to the freight as well as to the ship, for otherwise the amount of the proceeds of the ship itself could never be determined.* But it appears that the freight must be under the control of the Court, in the ordinary course of its jurisdiction and by virtue of its A mortgagee ordinary process; for a mortgagee is no more entitled now, than he was formerly, to initiate a suit in the Admiralty Court; he cannot arrest a vessel for the purpose of enforcing bail for her safe return to this country. Motion on behalf of a mortgagee for a warrant of arrest in this intent, was refused in the case of the Highlander. But in the more recent case of the Fortitude, the power conferred on the Admiralty Court by the new statute in questions of mortgage, was fully discussed. The vessel was arrested originally in a suit for mariners' wages, and such suit was still pending, when a principal action was entered on behalf of the mortgagees; the warrant of arrest as against the freight was executed by the arrest of the cargo, and an appear cannot now, more than he could before the statute, initiate a suit of possession. * See the Dowthorpe, by Dr. Lushington, reported in 2 Wm. Robinson's Admiralty Reports, 73. † 2 Wm. Robinson's Admiralty Reports, 109. ‡ Ibid., 217. |