1822. WOODS against RUSSELL. to recover the value of the ship, in which case the value, subject to a deduction, was to be taken at 3000; or, if not, whether they were entitled to recover the value of the rudder and cordage; and, should the Court be of opinion that they were entitled to neither, a nonsuit was to be entered; and upon these points alone the case was argued before the Court. It has occurred, however, to the Court, that a third question arises upon the facts, which neither party could have intended to exclude, which is this: whether, if the plaintiffs are not entitled to recover the whole value of the ship, they may not be entitled to recover to the extent of so much of the fourth instalment as, if the defendant has the ship, he ought to pay. And, upon the first and second questions, our opinion is in favour of the defendant; upon the last, against him. This ship is built upon a special contract, and it is part of the terms of the contract, that given portions of the price shall be paid according to the progress of the work; part when the keel is laid, part when they are at the light plank. The payment of these instalments appears to us to appropriate specifically to the defendant the very ship so in progress, and to vest in the defendant a property in that ship, and that, as between him and the builder, he is entitled to insist upon the completion of that very ship, and that the builder is not entitled to require him to accept any other. But this case does not depend merely upon the payment of the instalments; so that we are not called upon to decide how far that payment vests the property in the defendant, because, here, Paton signed the certificate to enable the defendant to have the ship registered in his (the defendant's) name, and by that act consented, as it seems to us, that the general property in the ship should be considered from that time as being in the defendant. The defendant had, at that time, paid half what the ship, when complete, would be worth. Paton could not be injured by having the general property in the ship considered as vested in the defendant, because he would still have a lien upon the possession for the residue of the price; and we think the legal effect of signing the certificate for the purpose of having the ship registered was, from the time the registry was complete, to vest the general property in the defendant. In order to register the ship in the defendant's name, an oath would be requisite that the defendant was the owner, and when Paton concurred in what he knew was to lead to that oath, must he not be taken to have consented that the ownership should really be as that oath described it to be? The case of Mucklow v. Mangles, 1 Taunt. 318. seems to us to be clearly distinguishable from the present, because the bargain there for building the barge does not appear to have stipulated for the advances which were made, and those advances do not appear to have been regulated by the progress of the work. Mr. Justice Heath's opinion appears to have been founded on the notion that the builder was not tied down to deliver that specific barge, but would have been at full liberty to have substituted any other he was building, and the builder had done no act expressing an unequivocal consent that the general property should be considered vested in the purchaser. The painting of the name upon the stern, the only act there, pledged the builder to nothing; it expressed an intention that the barge should be Pocock's, but it did no more. He might change that intention and obliterate the name. But the signing of the certificate, here, to the intent that the defendant might obtain a registry in his own name, was a consent that what was 3Q 2 necessary 1822. WOODS against RUSSELL 1822. Woons against RUSSELL necessary to enable the defendant to obtain such registry should, as between them, be considered as complete, and that, as the defendant would have to swear that he was sole owner of the ship, the ownership should be considered his. We are, therefore, of opinion, that the assignees, who claim under Paton, are bound equally with him; and, as this is not a case within the statute of James, the plaintiffs are not entitled to recover the general value of the ship. And as to the rudder and cordage, as they were bought by Paton specifically for this ship, though they were not actually attached to it at the time his act of bankruptcy was committed, they seem to us to stand upon the same footing with the ship, and that, if the defendant was entitled to take the ship, he was also entitled to take the rudder and cordage as parts thereof. Upon the last question, however, we are of opinion against the defendant. Though the general ownership was vested in the defendant, the possession remained with Paton; and as the bills for the third and fourth instalments were to be given at the launching of the ship (when launched), Paton, had he completed the ship, would have had a lien upon it till those bills were given; and as the defendant thought fit to take the ship before it was complete, after having given bills for the first three instalments only, we think he ought to have given a bill for so much of the fourth instalment as, according to the value of what remained to be done, Paton was entitled to receive; and that, unless what remained to be done would be equal to the whole of the fourth instalment, his taking the ship, without giving or tendering such a bill, was a wrongful taking. We are, therefore, of opinion, that, according to the provision made in that respect in the case, it ought to be referred to Mr. Bainbridge and Mr. Clayton, and such third per son 4 son as they shall appoint, to take an account of the want of materials stipulated to be provided by Paton not on board, and the fair expence of launching, and to enter the verdict accordingly. If the want of materials, and the expence of launching, shall amount to 750%, the verdict to be entered for the defendant; if it shall amount to less than 750l., a verdict for the difference to be entered for the plaintiff. Judgment accordingly. 1822. WOODS against RUSSELL. APOTHECARIES' Company against ROBY. THIS case was argued in the course of this term by Chief and Cur. adv. vult. an apothecary, ABBOTT C. J. now delivered the judgment of the Court. This was an action for a penalty on the statute 55 G. 3. c. 194., for practising as an apothecary without having obtained the certificate required by that which received the royal assent on the 12th July, 1815. act, At the trial before me, some evidence was offered on unless he take out a certificate," &c. By section 20, " if any person (except such as are then actually practising as such) shall, after the said 1st day of August, 1815, act or practise as an apothecary without having obtained some that such certificate, every person so offending shall forfeit 201.:" Held, in an action for the penalty, that it was not sufficient for the defendant, in order to bring himself within the exception, to shew that previously to and on the 12th of July, 1815, (when the act received the royal assent,) he was practising as an apothecary, but that it was necessary to shew that he was so practising on the 1st of August, 1815. 1822. APOTHECARIES' Company against ROBY. year; but as the evidence, such as it was, did not extend to the first day of August, the defendant having before that day left town, and become an assistant to an apothecary at Chatham; and, as I was of opinion, that no person was exempt from this penalty, who was not in practice as an apothecary, on the 1st of August; the jury under my direction in that respect, found their verdict for the plaintiffs. A rule to shew cause why there should not be a new trial was obtained, and upon shewing cause it was contended by the plaintiffs, first, that the direction was right in point of law; and if not so, then secondly, that there was no evidence that the defendant had at any time practised as an apothecary within the meaning of this statute. It is not necessary to give any opinion upon the latter point, because we are all of opinion that the direction was right in point of law. The statute was passed as I have before observed, on the 12th of July, 1815, but it may be said generally to take its effect from the first of August following. The great object of the statute, as appears by the preamble to the 7th section, was to prevent danger to the health and lives of the king's subjects by ignorant and incompetent practitioners. For this purpose provisions were made regarding two classes of persons, viz. persons practising as apothecaries, and persons acting as assistants to apothecaries. It would be known to the legislature, that some persons would be found engaged in each of those branches at the time (whatever that should be) at which the penalties imposed by the act might be made to take effect, and it was reasonable that some at least of such persons should be exempted from its enactment; and we are to learn from the language of the statute, what is the precise time at which a person 17 |