The same ceremony is also usually performed by a master of a vessel after any extraordinary accident or injury, if the vessel should be obliged to put into a port other than that of her destination, or to return to the port from whence she sailed. If there should not happen to be a notary practising at any port into which she may have put, it is customary for the master of a British vessel to note it before some person holding a public situation or office, connected in some degree with the British government, such as a magistrate, collector or controller of customs, &c. &c. ; but it may be proper here to remark, that although the ceremony is an important and material one, yet the master ought not to leave his post, or neglect his duty in times of urgency or danger, in order to note it, but he should do so on the first convenient opportunity afterwards.

The noting must bear the true date, and indeed it never can be antedated for any honest purpose; and there is no doubt that any notary lending himself to the collusive insertion of a false date would be exposed to serious consequences, and punishment by the master of the faculties; and in case of any good reason for the master delaying to note, until after the usual time, it is customary to add to the entry or noting a short statement giving the reason why the master did not enter a note of his protest sooner, so as to form part of the entry.

Ship protests are most useful and important documents, for various purposes, and especially in matters connected with the adjustment of losses in marine insurance, and for reference on the calculation of general averages, and ought to be prepared with impartiality, attention, and care; and from the importance of these instruments, it is highly expedient to avoid the error, which sometimes masters of vessels have been known to fall into, of employing ignorant or unqualified persons (either not being notaries, or who, by reason of not renewing their annual certificates, are not au

thorized to act as such) to prepare them. The irregularity and risk of getting any notarial act, such as a protest, or other notarial ceremony, made here before a foreign consul, if wanted to be produced before British underwriters, or to be used in this country, has been already explained.

Whenever it happens, either from the ship or cargo being lost or injured, or any other circumstance, that it becomes necessary to have a regular protest made, or extended as it is often termed, the course to be pursued is to cause it to be prepared by a notary, from the information as to the facts, to be derived from one or more of the crew, or from the log book, and for the master and others of the crew, (generally the master, mate, and a seaman,) within a reasonable time after arrival, to sign and declare to it before the notary; and it is not material to have it so extended before the same notary in whose office it was noted.

There is not any precise form generally adopted for a ship protest, and in fact the mode in which it is drawn up varies exceedingly; it generally consists of two parts, the first is a statement or declaration of the facts and circumstances of the voyage, and of the storms or bad weather which the vessel may have encountered, or any accidents which may have occurred during the course of it; and the other is the part in which the appearers or the notary, or both the appearers and the notary, protest, against the accidents, or causes of the injury, and against all loss or damage occasioned thereby, and at the end or foot is an attestation or certificate, under the hand and seal of the notary.

The protest was formerly commonly made on oath, the facts being sworn to by the master and mariners before a notary; but since the act for abolishing unnecessary oaths, it is usual and proper to subjoin, or annex to the statement or narrative of facts, the form of declaration given in the schedule to that act, as follows:

"We (names of the appearers) do solemnly and sincerely

declare, that the foregoing statement (or hereunto annexed, as the case may be) is correct, and contains a true account of the facts and circumstances, and we make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an act made and passed in the sixth year of the reign of his late Majesty, intituled, 'An act to repeal an act of the present session of parliament, intituled, An act for the more effectual abolition of oaths and affirmations taken and made in various departments of the state, and to substitute declarations in lieu thereof, and for the more entire suppression of voluntary and extra-judicial oaths and affidavits, and to make other provisions for the abolition of unnecessary oaths.' "'

The protesting part is too often spun out to an unnecessary and absurd length; it is a mere form, and a few words. are sufficient; for example, in a case of damage or injury, by storms or stress of weather, as follows:

"The appearers, A. B. C. D. and E. F., do protest, and I, the undersigned notary, do also protest, against the bad weather, gales, storms, accidents, and occurrences mentioned in the foregoing statement, (or hereunto annexed, as the case may be,) and all loss or damage occasioned thereby;" and it concludes with an attestation or short certificate, under the hand and seal of the notary, to the effect that it was declared and protested in due form of law.

According to commercial usage, it is considered, that it is a part of the duty of the master and crew to give faithful information, respecting the circumstances of the voyage, and to join in or make a true and impartial protest, when required to do so, by and at the expense of the owners of the vessel, or of any of the owners or consignees of the cargo, requiring it, and that a master refusing to do so would so far be guilty of a breach of duty, as to render himself liable to an action at law by the ship-owners, or the owners or consignees of the goods, for any loss or inconvenience in

consequence of his refusal. The expense of the protest cannot, however, be thrown upon the captain, by any of them; and the ship-owners, or the owners or consignees of goods, requiring a protest, must pay for it, or reimburse the captain, or tender the expense of it to the captain; and they may, if so disposed, cause it to be prepared by their own notary.

Connected to a certain extent with ship protests, are the notarial certificates of surveys having been held on the vessel or cargo, which are very useful documents to accompany protests, and a form of one of them is set out amongst the precedents.

Besides ship protests, strictly so called, there are many kinds of protests relating to other matters, as well as to the voyages of vessels, such as protests for refusing to sign proper bills of lading, for not providing a cargo, for not delivering goods, for detention, for demurrage, for not signing charter-parties, for misconduct or intoxication of the captain, for insufficiency or unseaworthiness of vessels, and for many other things relating to ships, cargoes, and other mercantile matters; those relating to bills of exchange have been already treated upon, and the above-mentioned protests are considered to be of great use in foreign countries, in cases of disputes, or demands, pending with parties residing abroad, and interested in such ships, goods, or matters: a note of any of them may, if desirable, be entered at the notary's office previous to making a formal protest. This kind of protests is in the nature of a declaration of facts, but, as it was not, generally speaking, thought necessary to make them on oath, in the form of affidavits, before the passing of the act for the abolition of unnecessary oaths, it is not considered requisite to add to them the concluding long form prescribed by that act, and the schedule referred to in it.

As it is proper for a notary to keep a registry of protests,

the most simple course, and the one least likely to admit of error, is to preserve the drafts of them with care, and at a convenient time, to number and bind them up together; by that plan, correct and certified copies can at any time afterwards be made out.

ART. X.-SETTLEMENT AND DISTRIBUTION OF INSOLVENT

ESTATES.

[A lecture of the late Professor Stearns, of Cambridge, read in October, 1823.]

In comparing our system of jurisprudence with that of the country from which so great a portion of it has been derived, we shall find few subjects upon which we differ more, or perhaps with greater advantage, than in relation to the disposition of the property of persons dying insolvent. The palpable injustice of the English law upon this head can hardly fail to strike every one, who bestows the least attention upon it. In whatever way the insolvent debtor may have managed his property in his lifetime, equity requires that it should be equally distributed among his creditors at his decease. This obvious principle is, however, in almost every case, entirely defeated by the rules of the common law.

In the first place, by the law of England, after the assets (or property with which the debts are to be paid), are collected, the debts must be discharged in a certain order as to priority. For if the executor or administrator should pay those of a lower degree first, and the assets are insufficient to pay all, he will be answerable for those of a higher order out of his own property. The common law prescribes this order.

First, he must pay the expenses of the funeral of the de