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." As no such provision is contained in the Acts extending the jurisdiction of Vice-Admiralty Courts, and as they have therefore no greater jurisdiction than was possessed by the Statute referred to, it is important to consider the limitations of the jurisdiction of the High Court prior to the

statute.

The Aurora (b), decided in 1880 by Sir W. Scott, was a cause of possession brought against the master and owner of a vessel by a merchant claiming title under a bill of sale, absolute in form, but given as a security for a debt The Court, holding that the plaintiff's title was not clear and indisputable, superseded the warrant which had been issued for the arrest of the vessel. "It is well known that it was formerly held, for a very long time, and down to no distant period, to be within the jurisdiction of this court to examine and to pronounce for the title of ships on questions of ownership. It was not till some time after the Restoration, I believe, that it was informed by other Courts that it belonged exclusively to them; since that time the Court. has been very cautious not to interfere at all in questions of this nature. Where the consideration of property arises incidentally, and in such a manner as is not disputed between the parties, the Court can hardly be said to judge on the matter of property, as being a matter of question. The present action being to dispossess the master at the suit of an owner, it is impossible for one to say that there is a sufficient constat of property for the purpose established” (c).

In The Sisters (d) (1862), the court was of the opinion that it should not enforce the legal title under a bill of sale against an equitable title, but leave the parties to find their proper remedies in a Court which can look into the whole of the transaction.

(b) 3 C. Rob. 133.

(c) See also The Guardian, 3 C. Rob. 94.

(d) 4 C. Rob. 276.

The opinions expressed in The Aurora are repeated in an ampler manner in The Warrior (e), decided by the same Judge in 1818. He adds a limitation, however, to the general rule that the Court will not investigate questions of disputed title. "A question of title may occur incidentally in a cause of possession, and it then becomes necessary for a Court to enquire into the title, at least so far as to 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 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 causes of possession would be ousted altogether. The nature of the title must be shewn 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 cob-web 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."

Again, in 1824, the original owners of a ship, which had been sold by the Master abroad, sought to recover possession from the purchaser, alleging that the sale was fraudulent (f). Lord Stowell in delivering judgment said :—“The case then is, in reality, an inquiry into the title of the present asserted proprietor to hold the ship, and the first, I had almost said the only question is, how far this Court is authorized to make this inquiry, and provided with due powers to make it with effect. The Court is certainly in the habit of transferring possession from the actual holder, sometimes by its own movement, sometimes at the instance

(e) 2 Dod. 288.

(f) The Pitt, 1 Hagg. 241.

of other Courts which have no direct power for that purpose; but it considers itself, and is bound to consider itself, as moving within very narrow limits, if it proceeds at all originally upon a question of title. It undoubtedly would not be inclined, in any case, to transfer a possession without regarding the title of the party who claims the transfer; it must be satisfied that he is potior jure; and it must be in cases extremely simple that it acts on a mere preferable title to be reached by its own judgment. Where the possession is gained by force and violence, or by a fraud manifest on the very face of the transaction; or where the party in possession is avowedly entitled only as a minor owner in opposition to the majority of interests, there the Court feels no hesitation; but where a course of transactions involving fraud is objected, it declines entering into the question, and leaves it to be determined by the enquiry of Courts which have ampler means of arriving at the real truth, and the real justice of the case; for there may be some incidental matters, such as repairs and other expenses, requiring the application of equitable principles which this Court may not feel itself competent to administer. I may, therefore, lay it down as a rule for the conduct of this Court, that it is only in simple cases, in cases which speak for themselves that it can act with effect; but in those which being complex, require a long and minute investigation, it cannot proceed with safety" (g).

The same question was discussed in 1830, before the High Court, upon an apeal from a decision of the ViceAdmiralty Court of Gibraltar (gg), in the case of The John (h), and the principles of limitation of the jurisdiction laid down in The Warrior and The Pitt, referred to and approved of as applicable also to Vice-Admiralty Courts. In The Victoria (1859), a cause of possession was brought against the master by the registered owner of 36 shares. The master was the registered owner of 28 shares, and claimed to be the equit

(g) See also The Fruit Preserver, 2 Hagg. 181; The Lister, 4 C. Rob. 275. (gg) This appellate jurisdiction was by 26 Vict. cap. 24, sec. 22, transferred to Her Majesty in Council.

(h) 2 Hagg. 305.

able owner of four more. The Court (Dr. Lushington) held that upon the evidence the master was the equitable owner of the four shares. "It is important to consider on what foundation the jurisdiction of the Court stands, and within what limits it is circumscribed. Causes of possession always belonged to the Court of Admiralty, but such jurisdiction was very limited; if questions of title arose, the Court declined to proceed further. It pleased the

Legislature, however, to enlarge the jurisdiction by enabling the Court in causes of possession to try questions of title (i). I have no doubt therefore of my authority to try questions of legal title, but how far I should be justified in trying an equitable title is another question. It was said by Lord Stowell that the Court exercised an equitable jurisdiction, and in one sense of the term I do not doubt it; but how far is the Court competent to enforce rights of technical equity, such as trusts? I need not give a complete answer to this question, for I apprehend that there is a distinction between enforcing an equitable right at the instance of the party claiming such right, and refusing to enforce a claim of a legal owner to the disregard of an equitable right."

It will be well, therefore, to review the cases in which the jurisdiction has been upheld.

The Court will undoubtedly exercise jurisdiction to take a ship from a wrong-doer and deliver her over to the rightful owner; and in such a case the Court of King's Bench refused to prohibit the High Court of Admiralty from proceeding (j). This subject was discussed by the Hon. Henry Black, Judge of the Vice-Admiralty Court at Quebec, in The Haidee (k), decided in 1860. Certain justices of the peace at Quebec acting clearly without jurisdiction, had issued warrants for the arrest of a vessel, which four years afterwards were enforced against the ship, which had then passed into the hands of a bona fide subsequent purchaser. The Court held that it was a cause of possession within its

(i) 3 & 4 Vict. cap. 65, sec. 4.

(j) Re Blanchard, 2 B. & C. 244; 3 D. & R. 177.

(k) 2 Stuart, 25.

jurisdiction, but finding that the plaintiff a bailiff acting under the warrants had no right to seize the vessel, dismissed the case and discharged the bail given by the owner in the cause with costs :l.

The Court has also jurisdiction apart from statute to dispossess a master at the suit of the owner. If the master is not a part owner, and if the majority of the owners declare their disinclination to continue him in possession the Court will dispossess him (m). In such a cause it is not competent to him to dispute the title of the registered owners and allege a title in other parties; but if he do so the Court will give further time for the appearance of the alleged owners. (n). By the majority of owners, is meant the majority in interest. The Court will not enter minutely into the causes of the dissatisfaction (o). If the master is also part owner, some special reason for dispossessing him must be shewn, as, for instance, that he is irregular in his accounts with the owners (p). The Windsor Castle was decided in 1841, prior to the statute which gave a master a lien for his wages and disbursements (q). The judgment proceeds expressly upon the ground that the master had no such lien. But the lien of the master being maritime and not

(1) An instance of a simple case of title, which though decided upon the Statutes 3 & 4 Vict. cap. 65, ss. 3 & 4 and 24 Vict. cap. 10, sec. 11, by the High Court, might, it is submitted, have been considered as within the jurisdiction of the Court apart from statute, will be found reported in L. R 4 A. & E. 6. There the ship, The Rose, had been mortgaged. After the mortgagor's death, she was sold under the mortgage, and a bill of sale duly made to the purchaser, who, thinking it necessary to complete his title, procured a receipt for the mortgage debt to be endorsed on the mortgage, and by mistake taken to the Custom House and duly recorded. Afterwards the bill of sale was presented for registration, which was refused on the ground that the registration of the receipt discharged the mortgage, and revested the ship in the mortgagor, or his representative. A cause of possession was instituted and the ship arrested. No appearance was entered. The mortgagor had died intestate, and no administrator had been appointed. The Court (Sir Robert Phillimore), pronounced the plaintiff to be owner, and entitled to be registered as such, and decreed possession to be delivered to him.

(m) The New Draper, 4 C. Rob. 287; The Aurora, 3 C. Rob. 133; Bowen v. Fox, 10 B. & C. 41.

(n) The Windsor Castle, 1 Notes of Cases 118.

(0) The See Reuter, 1 Dod. 23; The Kent, Lush. 495; The Johan and Siegmund, Edw. 242.

(p) The New Draper, supra.

(g) 17-18 Vict. cap. 104, sec. 191.